Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal (not separately numbered in judgment)· [2025] KECA 1016 (KLR)

Mado & another v Republic (Criminal Appeal 83 of 2020) [2025] KECA 1016 (KLR)

Court of Appeal of Kenya
30 May 2025
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The appellants, Calvin Ouma Mado and Jack Omondi Okumu, were convicted of murder by the High Court at Kisumu and each sentenced to thirty years' imprisonment. Their joint appeal to the Court of Appeal at Kisumu was against sentence only, on the sole ground that the learned Judge failed to consider their mitigation, rendering the sentences manifestly harsh and excessive. Counsel for the appellants also raised non-compliance with section 333(2) of the Criminal Procedure Code in respect of the 1st appellant's remand custody. The prosecution opposed, maintaining that the trial court recorded mitigation, considered a pre-sentencing report and victim impact statement, and properly imposed a deterrent sentence. The Court framed a single issue: whether it could interfere with the thirty-year sentences. Relying on Gabriel Kamau Njoroge v Republic and Bernard Kimani Gacheru v Republic, it reaffirmed that an appellate court will not interfere with sentence unless it is manifestly excessive, or the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle. On the sentencing notes, the Court found the appellants had been heard in mitigation, that the reports were availed and explained to them, and that the trial court deliberately imposed a deterrent sentence below the maximum penalty of death. The contention that mitigation was ignored was found incorrect, and the appeal against sentence failed, the thirty-year sentences being affirmed. However, the Court found the trial court had failed to take the 1st appellant's remand custody into account as directed by section 333(2) of the Criminal Procedure Code, and ordered his sentence to run from 23rd March 2017, the date of arraignment; the 2nd appellant, having been on bond, serves from the date of conviction. The decision binds subordinate courts on the test for interference with sentence and on the mandatory application of section 333(2).

Key legal issues

#
01

Whether the trial court failed to consider the appellants' mitigation, rendering the 30-year sentences manifestly harsh and excessive

Holding

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.

Reasoning

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.

p. 3
02

Compliance with section 333(2) of the Criminal Procedure Code regarding the 1st appellant's remand period

Holding

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.

Reasoning

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.

p. 4
03

Jurisdiction of the Court of Appeal to entertain an appeal against sentence from the High Court

Holding

Section 379(1) of the Criminal Procedure Code confers jurisdiction, with leave, against sentence unless the sentence is one fixed by law.

Reasoning

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.

p. 3

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. 1.The appellants' respective custodial sentences of thirty (30) years imprisonment are affirmed
  2. 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. 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

Authorities

#

Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Criminal Procedure Codesection 379(1)
  • Criminal Procedure Codesection 333(2)

Cases cited (5)

  • Gabriel Kamau Njoroge v Republic
    [1987] eKLR
  • Pandya v R
    [1957] EA 336
  • Ruwalla v R
    [1957] EA 570
  • Bernard Kimani Gacheru v Republic
    [2002] eKLR
  • Ogolla s/o Owuor vs. Republic
    [1954] EACA 270
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.