Mado & another v Republic (Criminal Appeal 83 of 2020) [2025] KECA 1016 (KLR)
The bottom line
#Kenya's Court of Appeal upheld 30-year murder sentences but ruled time spent in remand custody must count towards the sentence.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court failed to consider the appellants' mitigation, rendering the 30-year sentences manifestly harsh and excessive
The appeal against sentence fails; the trial court considered the mitigation and the pre-sentence report and victim impact statement, and imposed a deterrent sentence within its discretion.
The sentencing notes show the appellants were given an opportunity to mitigate, and counsel noted they were first offenders, young, married with dependants, and remorseful. The trial court called for and considered a pre-sentence report and victim impact statement before pronouncing sentence, opting for 30 years rather than the maximum death penalty. The contention that mitigation was ignored was therefore incorrect, and no basis for interference was shown.
Compliance with section 333(2) of the Criminal Procedure Code regarding the 1st appellant's remand period
The trial court failed to take the 1st appellant's remand custody into account; his sentence is to commence from the date of arraignment, 23rd March 2017. The 2nd appellant, having been on bond, serves from the date of conviction.
The court noted that the 1st appellant was in remand custody during the pendency of the case, which the trial court failed to account for as directed by section 333(2) of the Criminal Procedure Code. The court therefore exercised its power to order that the sentence commence from the date of arraignment. The 2nd appellant was on bond during trial, so his sentence runs from conviction.
Jurisdiction of the Court of Appeal to entertain an appeal against sentence from the High Court
Section 379(1) of the Criminal Procedure Code confers jurisdiction, with leave, against sentence unless the sentence is one fixed by law.
The court invoked section 379(1) of the Criminal Procedure Code, which permits a person convicted on a trial held by the High Court and sentenced to imprisonment for a term exceeding twelve months to appeal to the Court of Appeal against the sentence with leave, unless the sentence is one fixed by law. The 30-year sentences were not fixed by law, so the appeal was properly before the court.
Legal principles established
#- An appellate court will not easily interfere with a trial court's 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 was in remand custody during trial, the sentencing court must take that period into account under section 333(2) of the Criminal Procedure Code, failing which the appellate court may direct that the sentence commence from the date of arraignment.
Court orders
#- 1.The appellants' respective custodial sentences of thirty (30) years imprisonment are affirmed
- 2.The 1st appellant's sentence shall commence from the date he was arraigned before the trial court, that is, 23rd March 2017, to account for his remand custody under section 333(2) of the Criminal Procedure Code
- 3.The 2nd appellant's sentence shall run from the date of conviction by the trial court, as he was out on bond during trial
- On appeal from
- High Court of Kenya at Kisumu
- Jurisdiction invoked
- Section 379(1) of the Criminal Procedure Code, permitting an appeal to the Court of Appeal, with leave, against sentence imposed by the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mado & another v Republic (Criminal Appeal 83 of 2020) [2025] KECA 1016 (KLR)", Case Analysis (2025). Criminal Appeal (not separately numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1016/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.