Bosuben v Republic (Criminal Appeal 31 of 2019) [2025] KECA 130 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a 20-year murder sentence, ruling that judges who expressly consider time spent in custody satisfy Section 333(2) of the Criminal Procedure Code.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether in sentencing the appellant, the court failed to take into consideration Section 333(2) of the Criminal Procedure Code
Key legal issues
#Whether the trial court failed to comply with Section 333(2) of the Criminal Procedure Code by not reducing the sentence proportionately by the period spent in pre-trial custody
The appeal fails: the record showed the trial judge considered the mitigation, the probation report, and the period spent in custody, so there was no basis for interference.
The court found no evidence that the judge disregarded any material factor or acted on a wrong principle. The judge had taken into account every matter urged before her, including the time spent in custody. Sentence is discretionary and appellate interference is limited to cases of manifest excess, overlooked material factors, wrong material, or a wrong principle. Applying Ogola s/o Owoura and James v R, the court held the 20-year sentence, inclusive of custody time, was just and proportionate to the violent, fatal stabbing.
Legal principles established
#- An appellate court will not interfere with a sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.
- Where an accused has been held in custody prior to sentence, the sentence must take account of the period spent in custody under the proviso to Section 333(2) of the Criminal Procedure Code.
Court orders
#- 1.The appeal is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction under the Criminal Procedure Code (appeal against sentence)
Relief refused
#Interference with the 20-year sentence on account of time spent in custody under Section 333(2) of the Criminal Procedure Code
The trial judge took into account every matter urged before her, including time spent in custody; the sentence was proportionate and just
Costs
No costs order made
Quotable passages
#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 sole question for our determination is whether in sentencing the appellant, the court failed to take into consideration Section 333(2) of the Criminal Procedure Code.
It is now settled that sentence is a matter that rests in the discretion of the trial court and that sentence must depend on the facts of each case.
The sentence meted out was well deserved, within the law and proportionate to the crime committed. The sentence in the circumstances, including the period spent in custody, is just. Consequently we find no reason to interfere with it and, we order this appeal to be and is hereby dismissed in its entirety. Orders accordingly.
Issues in the judgment
#Paragraph 10 states the trial court expressed itself on Section 333(2) as follows, but the quoted passage that follows (paragraph 11) contains no trial-court wording - the sentencing ruling extract appears to be missing from the copy.
The judgment does not state the case number of the appeal or the trial court in the copy provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bosuben v Republic (Criminal Appeal 31 of 2019) [2025] KECA 130 (KLR)", Case Analysis (2025). Criminal Appeal (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/130/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.