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Court of AppealDismissedCriminal Appeal (unnumbered in judgment, second appeal from Nakuru High Court Criminal Appeal No. 40 of 2019)

Hassan v Republic (Criminal Appeal E004 of 2023) [2026] KECA 4 (KLR)

Court of Appeal of Kenya
16 January 2026
1,170 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed the death sentence for robbery with violence stands, ruling mandatory sentences remain lawful and second appeals cannot challenge sentence severity.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nakuru against the sentence imposed on the appellant, who had been convicted of robbery with violence contrary to section 296(2) of the Penal Code and rape contrary to section 10 of the Sexual Offences Act. The trial court sentenced him to death on the first count, with a 30-year term for rape held in abeyance, and Chemitei, J. dismissed his first appeal in the High Court on 4th September 2021. Before the Court of Appeal, counsel for the appellant abandoned any challenge to conviction and pursued only the sentence, invoking the Supreme Court's Muruatetu (2017) decision and Court of Appeal authorities to argue that the mandatory death sentence was unconstitutional and that mitigation, remorse and time served warranted reduction to 20 years. The respondent maintained that the ingredients of the offence were proved and that aggravating circumstances justified the severe sentence. The Court held that its jurisdiction in a second appeal is confined by section 361(1) of the Criminal Procedure Code to matters of law, and that severity of sentence is a matter of fact. It further held, applying the Supreme Court's 2021 clarification in Muruatetu and the 2024 decision in Republic v Mwangi, that mandatory and minimum sentences remain lawful and that Muruatetu (2017) applied only to murder. Concluding that the appeal against sentence was a non-starter, the Court dismissed the appeal and left the death sentence intact. The judgment was delivered on 16th January 2026 by Warsame, Mativo and Gachoka, JJA.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court, in a second appeal confined by section 361(1) of the Criminal Procedure Code to matters of law, can interfere with the sentence imposed
  2. 2.Whether the mandatory death sentence under section 296(2) of the Penal Code remains lawful in light of the Supreme Court decisions in Muruatetu (2021) and Republic v Mwangi (2024)

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction in a second appeal against sentence

Holding

The Court has no jurisdiction to interfere with sentence on severity grounds, as severity of sentence is a matter of fact and second appeals lie only on matters of law under section 361(1) of the Criminal Procedure Code.

Reasoning

Section 361(1) confines second appeals to matters of law and expressly excludes appeals against sentence except where the High Court enhanced the sentence or the subordinate court lacked power to pass it. Here the death sentence was neither enhanced nor beyond the trial court's powers. The Court therefore lacked power to revisit the sentence, describing its hands as tied by the law and the Supreme Court decisions.

p. 2
02

Lawfulness of the mandatory death sentence for robbery with violence after Muruatetu

Holding

The mandatory death penalty under section 296(2) of the Penal Code remains lawful; the Supreme Court's clarification in Muruatetu (2021) and its decision in Republic v Mwangi (2024) confirm that mandatory/minimum sentences in statutes stand, and Muruatetu (2017) applied only to murder.

Reasoning

The Court relied on the Supreme Court's 2021 clarification that its 2017 Muruatetu decision applied only to murder cases and that mandatory and minimum sentences prescribed in statutes remain lawful. The 2024 decision in Republic v Mwangi emphasized the lawfulness of mandatory sentences. Consequently the trial court's imposition of the mandatory death sentence after considering mitigation was lawful and could not be disturbed.

p. 3

Legal principles established

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  • In a second appeal, the Court of Appeal considers only issues of law and is bound by findings of fact of the lower courts, and severity of sentence is a matter of fact.
  • Mandatory and minimum sentences prescribed in statutes remain lawful; Muruatetu (2017) applied only to murder cases and does not invalidate the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code.

Court orders

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  1. 1.The appellant's appeal is hereby dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
High Court of Kenya at Nakuru
Nakuru High Court Criminal Appeal No. 40 of 2019
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Relief refused

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Reduction of the death sentence to 20 years imprisonment as proposed by the appellant

The mandatory sentence under section 296(2) of the Penal Code remains lawful per the Supreme Court, and severity of sentence is a matter of fact outside the Court's second-appeal jurisdiction

p. 3

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

By now, it is evidently clear that this appeal against sentence is a non-starter. Our hands are tied by the law and the Supreme Court decisions. We cannot interfere with the sentence. Accordingly, the appellant’s appeal is hereby dismissed.
p. 3Final orders - dismissal of the appeal
Where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law
p. 3Scope of second appeal - findings of fact
The Supreme Court on 6th July 2021 in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR reiterated that mandatory/ minimum sentences prescribed in the statutes remain lawful.
p. 3Lawfulness of mandatory sentences

Issues in the judgment

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material

The name of the appellant is never stated in the judgment; the case title above could not be drawn from the text and the first field should be verified against the official record.

minor

The judgment text is corrupted in places, using 'ofience' and 'sufier' for 'offence' and 'suffer', and 'afirmed'/'fiouted' for 'affirmed'/'flouted'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hassan v Republic (Criminal Appeal E004 of 2023) [2026] KECA 4 (KLR)", Case Analysis (2026). Criminal Appeal (unnumbered in judgment, second appeal from Nakuru High Court Criminal Appeal No. 40 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/4/eng@2026-01-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.