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Court of AppealPartially AllowedCriminal Appeal 79 of 2020

Masafu v Republic

Court of Appeal
19 December 2025
1,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a 20-year manslaughter sentence but ordered that time spent in custody before sentencing counts toward it.

What this practically means

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Executive summary

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The appellant was charged with the murder of Richard Juma Masafu, committed on 22nd March 2016 at Minyali Village, Bungoma Central. After a successful plea bargain he pleaded guilty to manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and was sentenced to twenty years' imprisonment by the High Court at Bungoma (Ali-Aroni, J.) on 21st November 2017. He appealed against sentence only, contending it was harsh and manifestly excessive, that he was a first offender, remorseful, and that the trial judge failed to consider his age, mental capacity, the plea agreement and time saved, and sought ten years computed from his arrest. The respondent, invoking Section 137L of the Criminal Procedure Code, maintained the appeal was limited to the legality of the sentence and that the facts showed the appellant was the aggressor, deserving a deterrent sentence. The Court of Appeal (Asike-Makhandia, H.A. Omondi and L. Kimaru, JJA) applied Bernard Kimani Gacheru v Republic on appellate interference with sentence, noted the maximum penalty for manslaughter is life imprisonment, and found the trial judge had considered the appellant's mitigation against the seriousness of the offence and the guilty plea. It held the twenty-year sentence sound in law, neither harsh nor excessive, and dismissed the appeal. However, applying Section 333(2) of the Criminal Procedure Code, it ordered that the sentence be computed from the date of arrest, 22nd March 2016. The judgment binds subordinate courts on the limited scope of appeals against plea-bargain sentences and the entitlement to credit for pre-trial custody.

Questions the Court framed

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

  1. 1.Whether the twenty-year sentence for manslaughter was harsh and manifestly excessive
  2. 2.Whether the trial court overlooked material factors in mitigation, including the appellant's age, mental capacity, remorse and plea agreement
  3. 3.Whether an appeal lies against a conviction and sentence procured through a plea bargain agreement under Section 137L of the Criminal Procedure Code

Key legal issues

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01

Interference with sentence on appeal

Holding

The twenty-year sentence was neither harsh nor excessive; the trial judge considered all relevant factors including mitigation, the seriousness of the offence and the guilty plea to manslaughter.

Reasoning

The court reappraised the sentencing notes and found the judge took into account the appellant's mitigation. The facts showed the appellant was the aggressor in a fatal attack on his brother following a land dispute, necessitating a deterrent sentence. Following Bernard Kimani Gacheru, the court would not interfere absent manifest excessiveness or a material oversight, none of which was shown.

p. 3
02

Scope of appeal after a plea bargain

Holding

Under Section 137L of the Criminal Procedure Code, the appeal was limited to the extent or legality of the sentence imposed pursuant to the plea agreement.

Reasoning

The respondent invoked Section 137L, which the court set out in full: a sentence passed under that Part is final and no appeal lies except as to the extent or legality of the sentence. The appellant challenged only the sentence, so the appeal fell within the permissible scope, but on the merits the sentence was upheld.

p. 2
03

Computation of pre-trial custody

Holding

The period spent in custody before sentence must be computed in the sentence under Section 333(2) of the Criminal Procedure Code.

Reasoning

The court noted the appellant was in custody during the pendency of his trial and was entitled to have that period computed in his sentence. Although the appeal against sentence failed, the court varied the commencement date so the sentence runs from the date of arrest, 22nd March 2016.

p. 3

Legal principles established

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  • On appeal against sentence, the appellate court will not interfere unless the sentence is manifestly excessive, the trial court overlooked material factors, took into account wrong material, or acted on a wrong principle.
  • Following a plea bargain agreement, no appeal lies from the conviction and sentence except as to the extent or legality of the sentence imposed.
  • An accused in custody during trial is entitled to have the period spent in custody computed in the sentence under Section 333(2) of the Criminal Procedure Code.

Court orders

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  1. 1.The appeal is dismissed save that the appellant's sentence shall be computed from the date of his arrest, namely 22nd March, 2016

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Bungoma
HCCRA No. 10 of 2016
Jurisdiction invoked
Articles 165(3)(a)&(b), 159(2)(a)&(b) and 22(4) of the Constitution of Kenya, as invoked by the appellant; first appeal under Rule 31(1)(a) of the Court of Appeal Rules

Relief refused

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Reduction of the twenty-year sentence to ten years computed from 22nd March 2016

The sentence was sound in law, neither harsh nor excessive; the trial judge considered all relevant factors including mitigation and the plea of guilty

Costs

No costs order 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.

The upshot of the above is that the appellant's appeal lacks merit. It is hereby dismissed, save for the fact that the appellant's sentence shall be computed from the date of his arrest, namely 22nd March, 2016.
p. 3Final orders - dismissal of appeal with variation of sentence commencement
we are satisfied that the twentyyear custodial sentence imposed by the trial court was sound in law, and that it is neither harsh nor excessive in the circumstances
Sentence upheld as neither harsh nor excessive
On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor
p. 2Test for appellate interference with sentence
Subject to subsection (2), the sentence passed by a court under this Part shall be final, and no appeal shall lie therefrom, except as to the extent or legality of the sentence imposed
p. 2Finality of plea-bargain sentences under Section 137L

Issues in the judgment

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material

Appellant's name inconsistently stated

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, "Masafu v Republic", Case Analysis (2025). Criminal Appeal 79 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2269/eng@2025-12-19

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