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Court of AppealPartially AllowedCriminal Appeal (not separately numbered in the judgment; appeal against conviction and sentence from Bungoma High Court murder case)

Mamati v Republic (Criminal Appeal 220 of 2019) [2024] KECA 328 (KLR)

Court of Appeal of Kenya
15 February 2024
HOHannah OkwenguJMJ. MativoJNJoel Ngugi
1,089 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal cut a murder sentence from 21 to 15 years, confirming courts must count time spent in custody before sentencing.

What this practically means

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Executive summary

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The appellant, Benard Simiyu Mamati, was convicted by the High Court at Bungoma on 10th June 2019 of the murder of his brother and sentenced to 21 years' imprisonment. He appealed against both conviction and sentence, but at the hearing before the Court of Appeal at Kakamega his counsel confirmed the appeal was pursued only against the sentence. Counsel argued that the trial judge failed to comply with the proviso to section 333(2) of the Criminal Procedure Code, which mandatorily requires a sentence to take account of the period spent in custody before sentence, noting the appellant had spent over seven years on remand, and further urged that the trial court failed to consider the appellant's advanced age, now approaching seventy years. Relying on the Court's dictum in Ahmad Aboifathi Mohammed & another v Republic, counsel submitted that a sentence running from conviction while custody was purportedly 'taken into account' ignores that period altogether. The Court held that the word 'shall' in the proviso imposes a mandatory duty on sentencing courts, as reinforced by the Judiciary Sentencing Policy Guidelines, but found on the record that the trial judge had expressly taken the years in custody into account in fixing 21 years. On age, the Court noted it was not raised in mitigation but, applying the principle that appellate courts do not lightly interfere with sentencing discretion unless the sentence is outrightly harsh or unlawful, and weighing proportionality, deterrence and rehabilitation, found it a proper case to interfere. The Court reduced the sentence from 21 years to 15 years inclusive of remand time, computed from the date of conviction, 10th June 2019. The judgment is a single judgment of the full bench of Okwengu, Mativo and Ngugi, JJA, with no separate opinions.

Questions the Court framed

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

  1. 1.Whether the learned judge, in computing the sentence, complied with section 333(2) of the Criminal Procedure Code by taking into account the period the appellant spent in custody before sentence
  2. 2.Whether the appellate court should interfere with the sentence on account of the appellant's age, which was not raised in mitigation

Key legal issues

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01

Compliance with section 333(2) of the Criminal Procedure Code in computing sentence

Holding

The judge did comply; the express statement that 21 years was imposed 'having taken account of the years in custody' satisfied the proviso, notwithstanding the appellant's claim that he was serving a full 21 years.

Reasoning

The proviso to section 333(2) uses the mandatory word 'shall', obligating trial courts to factor pre-sentence custody into the sentence. The Judiciary Sentencing Policy Guidelines reinforce this. However, on the record the trial judge expressly stated she took account of the years in custody, and the Court declined the appellant's contrary characterization. The record showed approximately 4 years, 6 months and 13 days in custody.

p. 3
02

Interference with sentence on grounds of the appellant's age

Holding

Although age was not raised in mitigation, the Court considered it along with the nature and severity of the offence and the principles of proportionality, deterrence and rehabilitation, and found it a proper case to interfere, reducing the sentence to 15 years.

Reasoning

Sentencing is a judicial discretion that appellate courts disturb only where the sentence is outrightly harsh or unlawful. Weighing the appellant's advanced age (approaching 70 years), the severity of murder, proportionality, deterrence and rehabilitation, the Court nonetheless found a proper case for interference and reduced the sentence to 15 years inclusive of remand time, computed from the date of conviction.

p. 3

Legal principles established

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  • Trial courts are mandatorily obliged, when passing sentence, to take into account the period an accused has been held in custody prior to sentence, and merely reciting that the period was considered while effectively ordering the sentence to run from conviction amounts to ignoring it.
  • An appellate court will not lightly interfere with a sentence imposed in the exercise of judicial discretion unless it is outrightly harsh or unlawful.

Court orders

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  1. 1.The sentence of 21 years imposed by the High Court is reduced to 15 years inclusive of the time taken in remand
  2. 2.The 15-year period shall be computed from the date of the appellant's conviction, that is 10th June 2019

The bench

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

HO
majority
JM
majority
JN
majority
On appeal from
High Court of Kenya at Bungoma
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Criminal Procedure Code appellate provisions; court exercising its ordinary appellate jurisdiction over conviction and sentence)

Relief refused

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Commutation of sentence on the basis that section 333(2) was not complied with as the sole ground

The Court found the learned judge did expressly take the period in custody into account when imposing 21 years

p. 3

Costs

No order as to costs is recorded 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.

Accordingly, we reduce the sentence of 21 years to 15 years inclusive of the time taken in remand. The 15 year period shall therefore be computed from the date of the appellant’s conviction, that is 10th June 2019.
p. 3Final orders - reduction of sentence
While passing a sentence, trial Courts are obligated by the law to take into account the period the accused has been held in custody while computing the sentence period.
p. 2Mandatory duty under proviso to section 333(2) of the Criminal Procedure Code
sentencing is an exercise of judicial discretion and an appellate Court will not lightly interfere with sentence uncles it is outrightly harsh or unlawful
p. 3Appellate restraint in interfering with sentence

Issues in the judgment

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minor

The judgment's internal date references are inconsistent: the body recites the conviction judgment as delivered on 10th June 2019 (consistent with the computation order), but the delivery line states the appeal was 'DATED AND DELIVERED AT KAKAMEGA THIS 15TH DAY OF FEBRUARY, 2024' while the hearing is recorded as having taken place on 12th March 2024, a date after the stated delivery date.

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, "Mamati v Republic (Criminal Appeal 220 of 2019) [2024] KECA 328 (KLR)", Case Analysis (2024). Criminal Appeal (not separately numbered in the judgment; appeal against conviction and sentence from Bungoma High Court murder case). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/328/eng@2024-03-15

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