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Court of AppealPartially AllowedCriminal Appeal No. 2 of 2021 (consolidated with Criminal Appeal No. 16 of 2021)

Tinya & another v Republic (Criminal Appeal 2 & 16 of 2021 (Consolidated)) [2025] KECA 1300 (KLR)

Court of Appeal of Kenya
18 July 2025
5,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a murder conviction but cut 3 years 9 months off the 30-year sentence because remand time must count.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJ.A.) heard two consolidated first appeals by Mbogo Katana Tinya and Mateso Charo Tinya against their conviction for the murder of SKK on 16th September 2014 at Tsanzuni Village, Kilifi County, and their sentences of 30 years' imprisonment imposed by the High Court at Malindi (Nyakundi, J.) on 16th December 2020. The appellants raised three grounds: failure to consider time spent in remand; failure to consider mitigation; and failure to produce a psychiatric report speaking to their mental status. The Court confined itself to the grounds of appeal, declining to entertain the respondent's submissions that raised new issues. On the psychiatric report ground, the Court held that the law presumes sanity until the contrary is proved; no defence of insanity was raised, no history of mental illness was suggested, and there was no evidence rebutting the presumption, so the absence of a mental assessment report caused no prejudice. The Court also upheld the trial judge's treatment of mitigation, finding both appellants were given and had their mitigation considered. However, the Court found merit on sentence to a limited extent: under Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines, 2023, the trial court was obliged to take account of the 3 years 9 months and 13 days the appellants spent in remand custody from 7th March 2016 to 16th December 2020. The appeal was accordingly dismissed save that it partially succeeded on sentence, with the conviction and judgment upheld and the remand period ordered to constitute part of each appellant's sentence. No costs order was made.

Questions the Court framed

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

  1. 1.Whether failure to produce a psychiatric report prejudiced the appellants
  2. 2.The propriety of the sentence, including whether the trial court considered the appellants' mitigation
  3. 3.Whether the trial court took account of the time the appellants spent in remand custody under Section 333(2) of the Criminal Procedure Code

Key legal issues

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01

Effect of non-production of a psychiatric report in a murder trial

Holding

Failure to produce a mental assessment report did not prejudice the appellants where no defence of insanity was raised, no history of mental illness was suggested, and the presumption of sanity was never rebutted.

Reasoning

The court noted no medical report on the appellants' mental status was on the record. The universal presumption is that a person is of sane mind unless the contrary is proved (Section 11, Penal Code). None of the appellants raised insanity at trial; their defences were alibis. The mental status of an accused relates to two distinct issues - capacity at time of the offence and fitness at trial - and neither was in question here. The ground therefore failed.

p. 7
02

Defence of insanity and burden of proof

Holding

Insanity is a defence only if proved that, at the time of the offence, the accused by reason of unsoundness of mind was incapable of knowing the nature of the act or that it was wrong; the burden lies on the accused on a balance of probabilities.

Reasoning

The court drew on its prior decisions and Sections 9, 11 and 12 of the Penal Code, emphasizing that the test is strictly confined to the time the offence was committed, and that while the accused bears the burden it is not as heavy as that resting on the prosecution.

p. 6
03

Consideration of mitigation in sentencing

Holding

The trial judge did consider the appellants' mitigation; the ground that mitigation was ignored was dismissed.

Reasoning

The record showed both appellants were given the opportunity to mitigate on 27th November 2020 and the judge expressly weighed aggravating factors against the mitigation offered before imposing 30 years' imprisonment. The appellants' complaint therefore lacked foundation.

p. 9
04

Credit for time spent in remand custody

Holding

The trial court was obliged to take account of the appellants' remand period of 3 years 9 months and 13 days under Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines, 2023; the appeal succeeded only to that extent.

Reasoning

The appellants were arrested on 7th March 2016 and, after bond terms were reviewed on 8th May 2018 without indication they met the terms, remained in remand until sentencing on 16th December 2020. The court held this period must constitute part of the 30-year sentences.

p. 10

Legal principles established

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  • A court hearing a first appeal must re-examine and analyse the evidence afresh and reach its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses.
  • Submissions by a party must be confined to the grounds of appeal raised; a court cannot entertain submissions that raise new grounds of appeal.
  • Every person is presumed to be of sound mind until the contrary is proved; where an accused raises the defence of insanity, the burden of proving insanity rests with the accused on a balance of probabilities.
  • Courts are obliged under Section 333(2) of the Criminal Procedure Code to take into account the period an accused spent in remand custody when imposing sentence.

Court orders

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  1. 1.The appeal is dismissed save that it partially succeeds in respect of sentence
  2. 2.The judgment of the High Court of Kenya at Malindi (Nyakundi, J.) delivered on 16th December 2020 is upheld save that the period the appellants were in remand custody (3 years 9 months and 13 days) shall be taken to constitute part of their respective sentences

The bench

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

majority

Wrote the judgment

majority
On appeal from
High Court of Kenya at Malindi
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, 2022, rule 31(1)(a), against conviction and sentence for murder contrary to Section 203 as read with Section 204 of the Penal Code
Consolidated with
Criminal Appeal No. 16 of 2021

Relief refused

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Conviction to be quashed on account of the missing psychiatric/mental assessment report

The presumption of sanity had not been rebutted; no defence of insanity was raised and there was no evidence of mental incapacity

p. 7

Setting aside the sentence on the ground that mitigation was not considered

The learned Judge accorded the appellants an opportunity to mitigate and considered their respective mitigations before sentencing

p. 9

Costs

No order as to costs was 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.

In the upshot, we find that the appeal is without merit and is hereby dismissed save that it partially succeeds in respect of sentence.
p. 10disposition
Consequently, we hereby uphold the Judgment of the High Court of Kenya at Malindi (Nyakundi, J.) delivered on 16th December 2020 save that the period the appellants were in remand custody as tabulated above shall be taken to constitute part of their respective sentences.
p. 10final orders - sentence credited with remand period
there was absolutely no evidence before the trial court upon which it could have been concluded that the presumption of sanity had been rebutted or dislodged
p. 7presumption of sanity
Where a party goes on to submit on matters that do not support the grounds of appeal, or submits on matters that ultimately raise new grounds of appeal, certainly, the Court cannot delve into such new matters.
p. 4submissions confined to grounds of appeal
It is now well settled, that a trial court has the duty to carefully examine and analyse the evidence adduced in a case before it and come to a conclusion only based on the evidence adduced and as analyzed.
p. 4duty of trial court on evidence
By dint of Section 333 (2) of the Criminal Procedure Code, the trial court was obliged to consider the period already spent in custody of 3 years 9 months and 13 days.
p. 9Section 333(2) remand credit

Issues in the judgment

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minor

The judgment refers to 'Section 162(1) to (5) of the Criminal Procedure Act', but elsewhere refers to 'Section 162(1) of the Criminal Procedure Code'; the statute is inconsistently named.

minor

The judgment states that PW10, the investigating officer, alluded to a mental assessment, but the investigating officer was earlier identified as PW6.

minor

The investigating officer stated he was instructed to visit the crime scene on 10th September 2014, whereas the murder is alleged to have occurred on 16th September 2014.

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, "Tinya & another v Republic (Criminal Appeal 2 & 16 of 2021 (Consolidated)) [2025] KECA 1300 (KLR)", Case Analysis (2025). Criminal Appeal No. 2 of 2021 (consolidated with Criminal Appeal No. 16 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1300/eng@2025-07-18

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