Nyaga v Republic (Criminal Appeal 40 of 2018) [2025] KECA 2131 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a death sentence for the murder of a toddler, confirming the death penalty remains a lawful option after the Muruatetu decision.
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 sentence imposed on the appellant should be reviewed to a term of imprisonment in light of Francis Karioko Muruatetu & Another v Republic
- 2.Whether the trial judge properly exercised the discretion now available after Muruatetu in imposing the death sentence
Key legal issues
#Whether the mandatory-death declaration in Muruatetu entitled this appellant to resentencing
No. Muruatetu removed only the mandatory nature of the death sentence; the death sentence remains lawful and the trial judge, having considered the circumstances and mitigation, properly exercised discretion in imposing death.
The court noted that Mabeya, J was aware of Muruatetu at sentencing and considered the circumstances of the murder before imposing death. The Supreme Court had declared only the mandatory wording of section 204 unconstitutional, leaving the death penalty available. The discretion conferred by Muruatetu had in fact been exercised, and the aggravating circumstances - the savage killing of a 2½-year-old child - amply justified the sentence.
The standard for appellate interference with a discretionary sentence
An appellate court will not interfere with sentence unless it is manifestly excessive, or the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.
The court adopted the classic statement in Bernard Kimani Gacheru v Republic, reaffirming that sentence rests in the discretion of the trial court and depends on the facts of each case. The fact that the appellate court might itself have imposed a different sentence is not sufficient ground for interference. None of the recognised grounds for interference was shown here.
Legal principles established
#- The death sentence remains a lawful sentence in Kenya; only the mandatory nature of section 204 of the Penal Code was declared unconstitutional, leaving trial judges discretion to impose either death or a term sentence.
- An appellate court will not interfere with a trial court's discretionary sentence unless it is manifestly excessive, or the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.
- In exercising sentencing discretion after Muruatetu, a trial judge may impose the death sentence where aggravating factors, mitigation, personal circumstances of the convict and victim impact statements justify it.
Court orders
#- 1.The appeal against sentence was dismissed
- 2.The death sentence imposed by the High Court was upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Meru
- Not stated in the judgment
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, 2010, article 164; Criminal Procedure Code) - not expressly stated in the judgment
Relief refused
#Review of the death sentence to a term of imprisonment
The court found the death sentence well deserved given the savage murder of the appellant's 2½-year-old son and the trial judge's proper exercise of discretion
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.
The appeal is devoid of merit and is accordingly dismissed.
We agree with Mabeya, J that the death sentence was well deserved.
a trial Judge has discretion to impose a death sentence taking into account aggravating factors, mitigation, personal circumstances of the convict and victim impact statement or any other extenuating circumstances.
On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle.
Issues in the judgment
#The judgment cites the Muruatetu decision as '(2016)' and '[2016] eKLR', but the sentencing and mitigation discussion occurred in 2018, and the well-known Muruatetu decision was delivered in 2017 - the year in the citation may be inaccurate; noted as printed in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga v Republic (Criminal Appeal 40 of 2018) [2025] KECA 2131 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2131/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.