David Wafula Mukanda v Republic

2. The brief facts giving rise to the conviction and sentence were set out in the evidence of ten prosecution witnesses. On 9th February 2016 at around 6:00 a.m., Antony Juma Simiyu (PW2), a son of the deceased and step-son of the appellant, left for school, approximately 100 meters away, leaving his mother alone at home and the appellant at a vegetable kiosk operated by his mother. At around 10:00 a.m., PW1 heard screams while at school and saw people gathering at their house. He went home and saw his mother lying on the bed covered in blood with injuries to her head, neck, and chest, along with two blood-stained knives on the bed. Patrick Kundu Machosi (PW3), the father of the deceased, detailed the history of domestic disputes between the appellant and deceased, and he was also called to the scene and saw the deceased and knives on the bed, and stated that the appellant escaped the scene and was later arrested in Bungoma. Similar testimony was given by Geoffrey Wankokho Kundu (PW4) a brother of deceased. 3. The report of the murder was made by Boniface Mwondi Kamisi(PW5), a village elder and in-Law of the deceased, whereupon P.C. Bernard Ongori (PW6), a Police Officer, Malakisi Police Station went to the scene and handed over to Sergeant Adan Mohamed (PW9), the Investigating Officer, who also visited the scene and collected the exhibits recovered at the scene by initial officers and forwarded the file to the ODPP Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 2 of 10

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while Richard Kimotai Langat, (PW7) a Government Analyst, examined the items recovered from the scene and confirmed that the DNA profile extracted from the blood stains on the knives and clothing matched the deceased and the accused. The appellant was arrested by Sgt. Pashua Juma (PW8), a police officer, at Bungoma Police Station, after the appellant went there with hand injuries and reported that he had been assaulted by his wife in Malakisi. 4. The appellant gave sworn testimony as DW1 in his defence, and called one witnesses after it was ruled that he had a case to answer. His defence was that he had a dispute with the deceased on 8th February 2016 over money he had given her to buy vegetables whereupon she went to her home. On 9th February 2016 he went to the deceased's house at 6:00 am to request his bicycle, and as he entered, the deceased attacked him with a knife, cutting his hands. He thereupon grabbed the deceased’s hands to defend himself, and during the struggle, they both fell onto the bed, where he managed to disarm her, threw the knife away, and ran out. The appellant claimed he did not see that the deceased stabbed or bleeding when he fled, and that he went directly to Bungoma Police Station to report being assaulted by his wife, where he was subsequently arrested. Naomi Nekesa Naliaakho (DW2), a sister of the appellant stated that she received a call from the appellant on the morning of 9th February 2016, who told her that he had Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 3 of 10

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been cut by his wife, who had died. She thereupon went to see him and took him to Webuye hospital for treatment and later to the police station. 5. The trial Judge was satisfied that the prosecution had proved its case beyond doubt after considering the evidence, and after convicting the appellant of murder, sentenced him to 25 years’ imprisonment, leading to the present appeal. We heard the appeal on this Court’s virtual platform on 20 th May 2026. The appellant was present, appearing virtually from Kibos Maximum Prison. Learned counsel Ms. Mariat Nannungi appeared for the appellant, while the learned Senior Assistant Deputy Director of Prosecutions, Mr. E. Otieno, appeared for the respondent. Both counsels relied on their respective written submissions dated 23 rd February 2026 and 19th March 2026. As this is a first appeal, the duty of this Court as set out in the case of Okeno vs. Republic [1972] EA 32 is to submit the evidence to a fresh and exhaustive examination, make its own findings and draw its own conclusions. In doing so, we are mindful of the fact that the trial court has had the advantage of hearing and seeing the witnesses. 6. In addition, as this appeal is on sentence only, it is settled that sentencing is a discretionary function of the trial court and an appellate court will only interfere where the sentence is illegal; founded on erroneous principles; where relevant Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 4 of 10

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factors were ignored; irrelevant factors were considered; or, where the Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 5 of 10

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sentence is manifestly excessive. This position has been consistently affirmed in the decisions of the courts. (See the decision of the predecessor of the Court of Appeal in Ogolla s/o Owuor vs Republic, [1954] EACA 270). This Court reiterated this position in Bernard Kimani Gacheru vs. Republic (2002) eKLR as follows: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. 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, or took into account, some wrong material, or acted on a wrong principle. Even if the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist.” 7. Ms. Nannungi in this regard submitted that the appellant in mitigation stated that he was remorseful, a first-time offender, and had a family depending on him, and while acknowledging the seriousness of the offence, counsel submitted that a 20- year sentence would be more reasonable. Reliance was placed on the decisions in Ogola s/o Owoura vs R (supra), Wanjema vs R (1971) E.A. Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 6 of 10

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493 and Arthur Muya Muriuki vs Republic (2015) eKLR, to urge that an appellate court can interfere Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 7 of 10

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with a trial court’s discretion if the court overlooked material factors, acted on wrong principles, or imposed a sentence that is manifestly excessive. 8. Further, that the trial Court erred in directing that the sentence should take effect from the date of conviction, and not giving credit for time the appellant spent in remand. While citing the decision in Vincent Sila Jona & 87 Others vs Kenya Prison Service & 2 Others (2021) eKLR, clauses 7.10 and 7.11 of the Judiciary Sentencing Policy Guidelines, section 333(2) of the Criminal Procedure Code and Article 50(2)(p)(q) of the Constitution, counsel submitted that courts are required to account for the period spent in pre-trial custody when determining sentences, and failure to do so violated the appellant’s fundamental rights to liberty, human dignity, and equality. 9. Mr. Otieno in response, while citing the decision in Bernard Kimani Gacheru vs. Republic (supra), submitted that the trial Judge considered the appellant’s mitigation and properly exercised his discretion in passing the sentence of 25 years’ imprisonment considering the manner the deceased lost her life, and there is no indication he took into consideration the wrong principles and the sentence cannot be said to be excessive. Learned counsel however conceded that the sentence should only be interfered with to the extent of giving credit to the appellant for the period spent in Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 8 of 10

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custody during Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 9 of 10

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trial by application of Section 333(2) of the Criminal Procedure Code. 10. We have considered the arguments put forth by counsel for the appellant and respondent. We have also perused the record, and note that on 3 rd November 2021, counsel for the appellant stated as follows in mitigation after the appellant had been convicted for the offence of murder: “The accused is remorseful. He is a first offender. He has 2 children he is taking care of from the deceased and 2 others from his family. He also takes care of old parents. We pray for noncustodial sentence”. 11. While imposing the sentence, the trial judge observed as follows: “The Court has taken into account the fact that accused is first offender and what has been stated in mitigation. However, the offence is serious as it led to loss of life of the deceased. The accused is hereby sentence (sic) to TwentyFive (25) years imprisonment. Right of appeal within 14 days.” 12. On the legality of the sentence of 25 years’ imprisonment, we note that the statutory penalty for murder is the death sentence as provided under Section 204 of the Penal Code. In the exercise of his discretion, however, the trial Judge Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 10 of 10

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imposed Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 11 of 10

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a sentence of 25 years’ imprisonment. In the circumstances, we find that the sentence imposed was lawful and properly grounded, and the appellant has not established any grounds upon which this Court can interfere with this sentence considering that the trial Judge took into account the appellant’s mitigating factors, as well as the aggravating factors. 13. As regards the time the appellant spent in custody during trial, the record shows that the appellant was arraigned in the trial Court on 18th February 2016 and upon taking plea on 7th March 2016, he applied for bond pending trial, which was granted in a ruling delivered on 25th April 2016 and the surety approved on 25th August 2016. He was accordingly released from custody on 25th August 2016, and therefore spent a total of 6 months and 7 days in custody during trial. The provisions of section 333(2) of the Criminal Procedure Code in this regard provide that the period during which an accused has been held in custody before being sentenced must be taken into account in meting out the sentence on the following terms: “Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code. Provided that where the person sentenced under Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 12 of 10

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subsection (1) has, prior to such sentence, been held Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 13 of 10

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in custody, the sentence shall take account of the period spent in custody.” 14. This Court in the case of Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi vs Republic [2018] KECA 743 (KLR) explained as follows as regards the manner of applicability of the said section: “By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012." Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 14 of 10

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15. The upshot of the foregoing analysis is that the appellant’s appeal against sentence partially succeeds, only to the extent that the 6 months and 7 days the appellant spent in remand custody between his arrest on 18 th February 2016 and his release on bond on 25 th August 2016 be taken into account in computing his sentence of 25 years’ imprisonment, pursuant to the provisions of Section 333(2) of the Criminal Procedure Code. The appellant’s conviction for murder and sentence of 25 years’ imprisonment are otherwise affirmed. 16. Orders accordingly. Dated and delivered at Kakamega this 25th day of September, 2026 P. NYAMWEYA. ……………..………. JUDGE OF APPEAL R. NGETICH ………………………. JUDGE OF APPEAL RADIDO S.OKIYO ………………….………. JUDGE OF APPEAL I certify that this is a Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 15 of 10

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true copy of the original. Signed DEPUTY REGISTRAR Judgment- KAK Criminal Appeal No. E003 of 2026 (Formerly KSM Criminal Appeal E143 of Page 16 of 10

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