Masika v Republic (Criminal Appeal 51 of 2020) [2025] KECA 1290 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a pre-Muruatetu mandatory death sentence with 30 years' imprisonment, confirming re-sentencing rights but denying bond-period credit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the death penalty is appropriate in the circumstances of the case
Key legal issues
#Whether the mandatory death sentence imposed before Muruatetu should be set aside on appeal against sentence
Yes. Both parties agreed, and the Court confirmed, that the sentence was mandatory; the appellant is entitled to the benefit of the Muruatetu jurisprudence and the Supreme Court's 2021 sentencing guidelines.
The trial judge, passing sentence in 2016, stated the law provided only one penalty - death - leaving no discretion. The Supreme Court in Muruatetu declared the mandatory death sentence for murder unconstitutional and directed that courts hearing sentence-only appeals receive re-sentencing submissions. The trial judge is blameless for following the law as it then stood, but the appellant must benefit from the new jurisprudence.
What sentence is appropriate on re-hearing, weighing mitigating against aggravating factors
Thirty years' imprisonment. Although the appellant was 24, a first offender and expressed regret, the murder was vicious, bore hallmarks of gender-based violence, involved concealment of the body and enjoyment of the proceeds of the stolen money, and traumatized the family.
The Court applied the Muruatetu factors - age, first-offender status, remorse, possibility of reform - against the aggravating circumstances: the vicious single blow, gender-based character of the attack, burial of the body in a pit, theft of the deceased's money, and the family's two months of anxiety before recovery of the decomposing body. Balancing these, the Court held a long custodial term, not death, was warranted.
Whether the sentence should be backdated under the proviso to section 333(2) of the Criminal Procedure Code
No. The appellant was released on bond shortly after arraignment, so he was not in pre-conviction detention and the proviso does not apply; the sentence runs from the date of the High Court sentence.
Counsel urged the Court to account for time spent in custody during trial. However, the record showed the appellant's surety was approved on 1st October 2012, shortly after his presentation in court on 4th September 2012. Since he was on bond throughout the trial, there is no custodial period to deduct, and the sentence commences on 9th August 2016.
Legal principles established
#- Sentencing is an exercise of discretion and an appellate court will not interfere with the sentence imposed by the trial court unless it is shown that the court acted on wrong principle, ignored material factors, took into account irrelevant considerations, or that the sentence is manifestly excessive.
- Persons sentenced to the mandatory death penalty for murder before Muruatetu are entitled to benefit from that jurisprudence on appeal against sentence alone, and the High Court and Court of Appeal must receive submissions on re-sentencing in such appeals.
Court orders
#- 1.The death penalty is set aside
- 2.Substituted with a sentence of thirty (30) years' imprisonment
- 3.The sentence runs from 9th August 2016, when the appellant was sentenced by the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal against sentence under the Criminal Procedure Code (specific provision not cited in the judgment)
Relief refused
#Credit for the period spent in detention during the trial under the proviso to section 333(2) of the Criminal Procedure Code
The appellant was released on bond (surety approved on 1st October 2012) shortly after arraignment, so he was not in detention during his trial
Counsel's proposed sentence of 15 years' imprisonment
The aggravating factors outweighed the mitigating factors; the appellant was held to deserve a long custodial sentence
Costs
No order as to costs was made in the judgment
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.
Consequently, the appellant's appeal against sentence succeeds to the extent that the death penalty is set aside and substituted with a sentence of thirty (30) years' imprisonment.
He cannot, therefore, benefit from the proviso to section 333(2) of the Criminal Procedure Code because he was not in detention during his trial. His prison sentence will therefore run from 9th August 2016, when he was sentenced by the High Court.
sentencing is essentially the exercise of discretion, and this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole the sentence is manifestly excessive.
It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masika v Republic (Criminal Appeal 51 of 2020) [2025] KECA 1290 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1290/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.