Tobias Nyakundi Nyamweya v Director of Public Prosecutions

Analysis 6. I have considered the application, the record of the trial court, and the applicable law. The issues that arise are whether the trial court complied with section 333(2) of the Criminal Procedure Code, and whether the sentence imposed was proportionate in light of the circumstances and applicable sentencing principles. Facts and Circumstances of the Offence 1. Scope of Revisionary Jurisdiction 7. Under section 364(1)(b) of the Criminal Procedure Code, this Court’s revisionary jurisdiction extends to examining the correctness, legality and propriety of any finding, sentence, or order of a subordinate court. Although the Applicant’s request is limited to time spent in custody, the Court must ensure that the sentence as imposed is lawful, fair, and consistent with the principles of sentencing. Paragraph 2. Nature of Sentence under Section 251 of the Penal Code 8. The offence of assault causing actual bodily harm attracts a maximum term of five years imprisonment. The phrase “liable to imprisonment for five years” indicates the maximum penalty and leaves the actual term to the discretion of the sentencing court. 9. In Opoya v Uganda [1967] EA 752, the Court of Appeal for Eastern Africa explained that: “ The words "liable to" do not require the mandatory imposition of the stated penalty but merely set out the maximum punishment that may be imposed, allowing the court the discretion to impose a lesser sentence depending on the specific circumstances of the case.” 10. Sentencing discretion must therefore be exercised judiciously, guided by the circumstances of the offence, the offender’s personal situation, and the objectives of sentencing. 11. The Sentencing Policy Guidelines (2016), at paragraphs 4.1 and 4.2, set out the core principles of sentencing—fairness, proportionality, consistency, rehabilitation, and parsimony. 12. Paragraph 4.1(f) defines the principle of parsimony as follows: “ The principle of parsimony requires that the least severe sentence necessary to achieve the objectives of sentencing be imposed.” 13. The Court of Appeal in Benard Kimani Gacheru v Republic [2002] eKLR held that an appellate court will not easily interfere with a sentence unless it is satisfied that the trial court acted on a wrong principle, overlooked a material factor, took into account an irrelevant factor, or that the sentence is manifestly excessive in the circumstances of the case. 14. The Applicant was a first offender, expressed remorse, and pleaded for leniency. The trial court did not identify any aggravating factors such as repeat offending to justify the imposition of the statutory maximum. 15. The injuries were assessed as harm and were not life-threatening. The complainant received medical treatment consisting of stitching and dressing. In the absence of aggravating circumstances, the imposition of the maximum sentence was therefore unwarranted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18547/eng@2025-11-13 2

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16. Considering the Applicant’s mitigation, the nature of injuries, and the period already spent in custody, the sentence of five years imprisonment was excessive and contrary to the principles of proportionality and parsimony. A shorter custodial term would sufficiently meet the aims of punishment, deterrence, and rehabilitation. 2. Consideration of Period Spent in Custody 17. Section 333(2) of the Criminal Procedure Code provides that— “ Subject to the provisions of section 38 of the Penal Code, where a person sentenced to imprisonment has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 18. The Sentencing Policy Guidelines (2016) at paragraph 7.10 reaffirm this requirement: “ The court must take into account the period spent in custody if the convicted person had been in custody during the trial. Failure to do so may result in an excessive sentence contrary to the principles of proportionality and fairness.” 19. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR held that: “ It is not enough for the sentencing court merely to state that it has taken into account the period spent in custody; the record must demonstrate that such period was considered and factored into the final sentence.” 20. Similarly, in Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal emphasised that failure to consider the period already served in custody may render the sentence excessive and open to revision. 21. The record in this case reveals that the trial court only considered the period spent in remand custody and not the full period from the Applicant’s arrest on 13th June 2024. The omission to credit that period contravenes section 333(2) and the cited authorities. Conclusion 22. Having considered the application, the record, and the relevant law, I find that the sentence imposed on 31st July 2025 was not in compliance with section 333(2) of the Criminal Procedure Code and the Sentencing Policy Guidelines (2016). 23. Accordingly, and in exercise of the powers conferred by sections 362 and 364 of the Criminal Procedure Code, I make the following orders: 1. The sentence of five (5) years’ imprisonment imposed on 31st July 2025 is hereby set aside. 2. The sentence is substituted with a term of two (2) years’ imprisonment. 3. The said sentence shall be computed from 13th June 2024, being the date of the Applicant’s arrest 4. The Prison Authorities shall adjust the Applicant’s sentence computation accordingly 5. This matter having been finalized, the file is closed Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18547/eng@2025-11-13 3

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DELIVERED AT NYAMIRA THIS 13th DAY OF November 2025 WAMAE. T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Applicant - Present in person For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18547/eng@2025-11-13 4

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