Karabu v Republic (Criminal Appeal E055 of 2023) [2025] KECA 2108 (KLR)
The bottom line
#Kenya's Court of Appeal cut a 20-year sentence back to 15 years because the judge failed to deduct remand time and to warn the appellant before enhancing the sentence.
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 High Court was in error in upholding the conviction despite the omission by the trial court to inform the Appellant of his constitutional right to legal representation under Article 50(2)(g) and (h) of the Constitution
- 2.Whether the High Court failed to take into account the mandatory requirement of Section 333(2) of the Criminal Procedure Code regarding the period spent in remand custody prior to conviction and sentencing
- 3.Whether the High Court wrongly enhanced the Appellant's sentence without giving prior notice to him, thereby contravening Section 382 of the Criminal Procedure Code
Key legal issues
#Right to legal representation under Article 50(2)(g) and (h)
The omission by the trial court to inform the appellant of his right to State-funded counsel did not invalidate the conviction as no substantial injustice or prejudice was shown.
The court applied its decision in William Oongo Arunda, holding that State-funded representation is required only where substantial injustice would result, such as in complex or serious charges or where the accused cannot participate effectively. The record showed the appellant actively participated, cross-examined witnesses strenuously, and raised the issue only on appeal, not at trial. The High Court had not addressed the point, but this court found no prejudice.
Section 333(2) Criminal Procedure Code - remand custody
The High Court erred in failing to deduct the 1 year and 7 months spent in remand custody from the sentence; the sentence must be reduced proportionately by that period.
Section 333(2) obligates a sentencing court to take account of the period spent in custody before sentence. Following Ahamad Abolfathi Mohammed and Bethwel Wilson Kibor, the court held that 'taking into account' means reducing the sentence proportionately, not merely reciting that the period was considered. The appellant was arrested on 27th May 2016 and convicted on 20th December 2017, hence entitled to the deduction.
Enhancement of sentence without notice - Section 382 Criminal Procedure Code
The High Court's enhancement of the sentence from 15 to 20 years without notice or warning was a misdirection and the enhancement was set aside.
Applying JJW v Republic, the court held that although the High Court has power under Section 354(3) to enhance a sentence, the appellant must be warned before or at the commencement of the hearing, or served with a prosecution cross-appeal seeking enhancement. No such notice or warning appeared on the record, denying the appellant an opportunity to oppose enhancement, amounting to a misdirection.
Legal principles established
#- On a second appeal the Court of Appeal is confined to questions of law and cannot interfere with findings of fact unless the lower courts considered matters they ought not to have, or failed to consider matters they should have, or were plainly wrong.
- State-funded legal representation under Article 50(2)(h) arises only where substantial injustice would otherwise result, particularly in complex or serious charges or where the accused cannot effectively participate in the trial.
- A court sentencing an accused who was held in custody prior to sentence must reduce the sentence proportionately by the period already spent in custody; it is not enough to merely state that the period has been taken into account.
- An appellate court may not enhance a sentence without prior notice to the appellant, either by a prosecution cross-appeal served in good time or by a warning at the commencement of the hearing that the sentence risks enhancement.
Court orders
#- 1.Appeal against the upholding of the appellant's conviction dismissed
- 2.Sentence of 20 years imposed by the High Court set aside; trial court's sentence of 15 years imprisonment upheld
- 3.The 1 year and 7 months spent in custody prior to sentencing to be deducted from the 15 years term of imprisonment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal limited to questions of law)
Relief refused
#Appeal against conviction
Nothing on record suggested the appellant suffered substantial injustice from absence of legal representation; he actively participated and cross-examined witnesses
Costs
No costs order 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.
In the end, we find that the appeal against the upholding of the appellant’s conviction fails and is hereby dismissed.
The appeal against the sentence imposed by the High Court partially succeeds, to the extent that we set aside the sentence of 20 years imposed by the High Court, and instead uphold the sentence imposed by the trial court of 15 years imprisonment.
Further, we direct that the 1 year and 7 months which the Appellant spent in custody prior to being sentenced shall be deducted from the 15 years term of imprisonment.
Taking into account the period spent in custody means considering the period so as to reduce the imposed sentence proportionately by the period already spent in custody.
Issues in the judgment
#The judgment gives inconsistent dates for the trial court's judgment delivery
The case number and neutral citation do not appear in the text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karabu v Republic (Criminal Appeal E055 of 2023) [2025] KECA 2108 (KLR)", Case Analysis (2025). Criminal Appeal (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2108/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.