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Court of AppealDismissedCriminal Appeal (Nakuru)

Bosuben v Republic (Criminal Appeal 31 of 2019) [2025] KECA 130 (KLR)

Court of Appeal of Kenya
7 February 2025
1,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a 20-year murder sentence, ruling that judges who expressly consider time spent in custody satisfy Section 333(2) of the Criminal Procedure Code.

What this practically means

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Executive summary

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The appellant was convicted of murder by the High Court (Mumbi Ngugi, J.) and sentenced to 20 years' imprisonment, the sentence to run from 27th February 2019. His appeal to the Court of Appeal at Nakuru challenged only the sentence, contending that the trial judge failed in a meaningful way to take into account the approximately five years he had spent in custody during the trial, as required by Section 333(2) of the Criminal Procedure Code. Relying on Ahamad Abolfathi Mohammed, counsel argued that 'taking into account' custody time requires a proportionate reduction of the sentence, not mere recital. The State countered that the judge expressly considered the custody period and that the sentence was proportionate given the violence of the fatal stabbing. The court framed a sole issue: whether the trial court failed to consider Section 333(2). Reiterating the settled principle that sentence is discretionary and will not be disturbed on appeal unless manifestly excessive, or unless the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle (per Ogola s/o Owoura, James v R and R v Sher Shewky), the court found that the judge had considered the mitigation, the probation report, the circumstances of the offence, and the time spent in custody. Holding the sentence well deserved, lawful and proportionate, the full bench unanimously dismissed the appeal in its entirety on 7th February 2025. The decision binds subordinate courts on the narrow appellate threshold for interfering with sentence and confirms that a record showing express consideration of custody time satisfies Section 333(2).

Questions the Court framed

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

  1. 1.Whether in sentencing the appellant, the court failed to take into consideration Section 333(2) of the Criminal Procedure Code

Key legal issues

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Whether the trial court failed to comply with Section 333(2) of the Criminal Procedure Code by not reducing the sentence proportionately by the period spent in pre-trial custody

Holding

The appeal fails: the record showed the trial judge considered the mitigation, the probation report, and the period spent in custody, so there was no basis for interference.

Reasoning

The court found no evidence that the judge disregarded any material factor or acted on a wrong principle. The judge had taken into account every matter urged before her, including the time spent in custody. Sentence is discretionary and appellate interference is limited to cases of manifest excess, overlooked material factors, wrong material, or a wrong principle. Applying Ogola s/o Owoura and James v R, the court held the 20-year sentence, inclusive of custody time, was just and proportionate to the violent, fatal stabbing.

p. 3

Legal principles established

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  • An appellate court will not interfere with a sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.
  • Where an accused has been held in custody prior to sentence, the sentence must take account of the period spent in custody under the proviso to Section 333(2) of the Criminal Procedure Code.

Court orders

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  1. 1.The appeal is dismissed in its entirety

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
Jurisdiction invoked
First appellate jurisdiction under the Criminal Procedure Code (appeal against sentence)

Relief refused

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Interference with the 20-year sentence on account of time spent in custody under Section 333(2) of the Criminal Procedure Code

The trial judge took into account every matter urged before her, including time spent in custody; the sentence was proportionate and just

p. 3

Costs

No costs order made

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.

The sole question for our determination is whether in sentencing the appellant, the court failed to take into consideration Section 333(2) of the Criminal Procedure Code.
p. 2Issue for determination
It is now settled that sentence is a matter that rests in the discretion of the trial court and that sentence must depend on the facts of each case.
p. 2Discretion in sentencing
The sentence meted out was well deserved, within the law and proportionate to the crime committed. The sentence in the circumstances, including the period spent in custody, is just. Consequently we find no reason to interfere with it and, we order this appeal to be and is hereby dismissed in its entirety. Orders accordingly.
p. 3Final orders / disposition

Issues in the judgment

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minor

Paragraph 10 states the trial court expressed itself on Section 333(2) as follows, but the quoted passage that follows (paragraph 11) contains no trial-court wording - the sentencing ruling extract appears to be missing from the copy.

minor

The judgment does not state the case number of the appeal or the trial court in the copy provided.

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, "Bosuben v Republic (Criminal Appeal 31 of 2019) [2025] KECA 130 (KLR)", Case Analysis (2025). Criminal Appeal (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/130/eng@2025-02-07

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