Kahindi v Republic
The bottom line
#Kenya's Court of Appeal refused to shorten a 30-year sentence but ordered that time already spent in custody before sentencing be deducted from it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is any justification for this Court to interfere with the sentence of thirty years' imprisonment imposed upon the appellant
- 2.Whether the two courts below failed to consider the appellant's mitigation
- 3.Whether the appellant's pre-trial custody period was taken into account in the sentence
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal against sentence
The Court can only interfere with sentencing when a question about the legality of a sentence has been raised; severity of sentence is a matter of fact and precluded on second appeal, per section 361(1)(b) CPC as clarified by the Supreme Court in Republic v. Mwangi.
Section 361(1)(b) CPC confines second appeals to matters of law. The Supreme Court in Republic v. Mwangi clarified that severity of sentence is a matter of fact, barring the Court of Appeal from sentence questions except where the High Court enhanced the sentence. The appellant's complaints on mitigation, age and sentencing objectives are factual and were not raised in his trial mitigation.
Whether the appellant's mitigation was considered by the courts below
Both the trial Court and the High Court expressly took into account the appellant's mitigation; the ground fails.
The trial magistrate's sentencing ruling expressly recorded consideration of the mitigation, prosecution submissions, the offence circumstances and the P3 form. The High Court found no grounds to interfere with the sentencing discretion. The appellant's lack of remorse and absconding during trial were relevant factors properly weighed.
Whether the pre-trial custody period was factored into the sentence
The appellant is legally entitled to have the period spent in custody before sentencing factored into his 30-year sentence; a direction to that effect was issued.
The proviso to section 333(2) CPC mandates that a sentence take account of time held in custody prior to sentencing. The record shows the appellant spent time in custody before release on bond and again after absconding. The court directed that this period be factored into the computation of the sentence.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and cannot interfere with findings of fact of the lower courts unless they considered matters they ought not to have, or failed to consider matters they should have, or were plainly wrong.
- Severity of sentence is a matter of fact, and on a second appeal the Court of Appeal is barred from determining questions relating to sentences except where such sentence has been enhanced by the High Court.
- Where an accused has been held in custody prior to sentencing, 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
#- 1.Direction that the period the appellant spent in custody before sentencing be factored into the computation of his 30-year sentence in tandem with the proviso to section 333(2) of the Criminal Procedure Code
- 2.Appeal against sentence partially allowed to that extent; all other grounds dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Criminal Appeal No. 62 of 2018
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law)
Relief refused
#Reduction of the 30-year sentence on grounds of mitigation, sentencing objectives, and age
Matters of fact precluded on second appeal under section 361(1)(b) CPC; mitigation was in fact considered by both courts below
Costs
No costs order 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.
Consequently, we hold that the appeal against the sentence is only partially allowed to this extent. All other grounds lack merit and are dismissed.
He is legally entitled to have the period spent in custody factored in the period of his sentence of 30 year’s imprisonment, and we accordingly direct that this be done in tandem with the proviso to section 333(2) of the Criminal Procedure Code.
the severity of sentence is a matter of fact and not of law and the Court of Appeal is barred from determining questions relating to sentences meted out, except where such sentence has been enhanced by the High Court.
Orders accordingly.
Issues in the judgment
#Procedural chronology contradiction: case placed on defence 27 July 2017 yet plea of guilty recorded 15 May 2018 without explanation of how the defence stage concluded.
Coram lists FA Ochieng JA but judgment notes his death before delivery; his name does not appear in the delivery signature block.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahindi v Republic", Case Analysis (2025). Criminal Appeal E086 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2249/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.