Tinya & another v Republic (Criminal Appeal 2 & 16 of 2021 (Consolidated)) [2025] KECA 1300 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure to produce a psychiatric report prejudiced the appellants
- 2.The propriety of the sentence, including whether the trial court considered the appellants' mitigation
- 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
#Effect of non-production of a psychiatric report in a murder trial
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.
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.
Defence of insanity and burden of proof
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.
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.
Consideration of mitigation in sentencing
The trial judge did consider the appellants' mitigation; the ground that mitigation was ignored was dismissed.
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.
Credit for time spent in remand custody
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed save that it partially succeeds in respect of sentence
- 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
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
#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
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
Costs
No order as to costs was made in the judgment.
Quotable passages
#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.
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.
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
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.
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.
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.
Issues in the judgment
#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.
The judgment states that PW10, the investigating officer, alluded to a mental assessment, but the investigating officer was earlier identified as PW6.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.