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Court of AppealPartially AllowedFirst appeal against sentence from High Court of Kenya at Migori

Amayo alias Zakayo Amayo & 2 others v Republic (Criminal Appeal E268 of 2022) [2026] KECA 1413 (KLR)

Court of Appeal of Kenya
10 July 2026
1,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cut three murder sentences from 30 to 15 years because the trial judge ignored mitigation and failed to credit time spent in remand.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Kisumu limited to sentence only, by three appellants convicted of two counts of murder contrary to section 203 as read with section 204 of the Penal Code by the High Court at Migori and sentenced to 30 years' imprisonment each, running concurrently. The appellants argued that the sentences were harsh, excessive and disproportionate, and that the trial court failed to consider mitigation and the period spent in remand custody under section 333(2) of the Criminal Procedure Code. The respondent defended the sentences given the brutality of the killings, conceding only the section 333(2) point. The court framed a single issue: whether the sentence was harsh, excessive and disproportionate. It held that although sentencing lies in the trial court's discretion, the sentence must reflect both the offence's seriousness and the offender's circumstances, and that a uniform 30-year term imposed without demonstrating how mitigation was weighed was a misdirection. The court also took account of the cultural context: the killings arose spontaneously from a witchdoctor's accusation of arson, which mitigated the degree of malice aforethought, citing Charo Kalu v Republic for the proposition that witchcraft-accusation killings may warrant reduced sentences or be treated as manslaughter. Declining to substitute manslaughter for murder since the appeal was strictly on sentence, the court upheld the convictions, set aside the 30-year sentences, and substituted fifteen years' imprisonment backdated to 27th August 2018, giving effect to section 333(2). The appeal succeeded in part.

Questions the Court framed

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

  1. 1.Whether the sentence imposed upon each appellant was harsh, excessive, and disproportionate

Key legal issues

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01

Whether the uniform 30-year sentence was harsh, excessive and disproportionate

Holding

Yes. The trial court misdirected itself by imposing a uniform sentence without demonstrating how the mitigating factors were weighed against the aggravating circumstances.

Reasoning

The court reiterated that sentencing is a discretion of the trial court but must reflect the offence's seriousness and the offender's personal circumstances. The trial court noted mitigation but imposed a uniform 30-year term without showing how mitigation was weighed, amounting to a misdirection. The witchcraft-accusation context was spontaneous mob reaction rather than premeditation, mitigating the degree of malice aforethought and warranting a reduced, individualized sentence.

p. 3
02

Whether time spent in pre-trial remand custody should be factored into the sentence

Holding

Yes. Section 333(2) of the Criminal Procedure Code requires the period spent in remand custody to be taken into account; the substituted 15-year sentence runs from the date of arraignment.

Reasoning

Counsel for the respondent conceded that the trial court ought to have factored the remand period into the sentence under section 333(2). The court gave effect to that concession by backdating the substituted sentence to 27th August 2018, the date the appellants were arraigned in court, before their release on bail in November 2018.

p. 3

Legal principles established

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  • Sentencing rests in the discretion of the trial court, but the sentence must reflect both the seriousness of the offence and the personal circumstances of the offender; a uniform sentence imposed without demonstrating how mitigation was weighed against aggravating circumstances is a misdirection.
  • Killings arising from witchcraft accusations and beliefs in certain communities may properly be treated as manslaughter rather than murder, or at the very least warrant a reduced sentence.
  • In a first appeal limited to sentence, an appellate court will not venture into conviction-related issues not invited by the parties.

Court orders

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  1. 1.The conviction for murder is upheld
  2. 2.The sentence of 30 years' imprisonment imposed upon each appellant is set aside
  3. 3.A sentence of fifteen (15) years' imprisonment is substituted, to run from the date the appellants were arraigned in court on 27th August 2018, giving effect to section 333(2) of the Criminal Procedure Code

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 Migori
Jurisdiction invoked
First appeal to the Court of Appeal on sentence only (Criminal Procedure Code appellate framework; original convictions and sentences imposed under sections 203 and 204 of the Penal Code)

Relief refused

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Substitution of the conviction for murder with manslaughter

The appeal was strictly on sentence and the court declined to determine an issue not raised by the parties

p. 3

Costs

No costs order 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.

sentencing rests entirely in the discretion of the trial court. However, it must refiect both the seriousness of the ofience and the personal circumstances of the ofiender
p. 3Sentencing discretion and its limits
killings arising from witchcraft accusations and believes in certain communities may properly be treated as manslaughter rather than murder, or at the very least warrant a reduced sentence
p. 3Witchcraft-accusation killings as mitigating context
Accordingly, while the conviction for murder is upheld, the sentence imposed upon each appellant is set aside. In its place, we substitute a sentence of fifteen (15) years' imprisonment to run from the date they were arraigned in court on 27th August, 2018
p. 3Final orders - conviction upheld, sentence reduced and backdated

Issues in the judgment

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minor

The judgment is a certified copy containing OCR-style typographical errors (e.g. 'ofiience' for 'offence', 'sufiered' for 'suffered', 'fiied' for 'fled'); quotes are reproduced verbatim as printed.

minor

The judgment does not state the case number of the appeal or of the High Court trial, and no costs order appears in the disposition.

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, "Amayo alias Zakayo Amayo & 2 others v Republic (Criminal Appeal E268 of 2022) [2026] KECA 1413 (KLR)", Case Analysis (2026). First appeal against sentence from High Court of Kenya at Migori. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1413/eng@2026-07-10

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