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Court of AppealPartially AllowedCriminal Appeal (sentence) - memorandum of appeal dated 24th February 2025· [2026] KECA 605 (KLR)

Evans Otieno Adon'go v Republic

Court of Appeal of Kenya
13 March 2026
ASAsike-MakhandiaHOH.A. OmondiLKL. Kimaru
1,403 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a murder sentence from 35 to 25 years and ordered it counted from the date of arrest, not conviction.

What this practically means

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Executive summary

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The appellant, Evans Otieno Adong'o, was convicted by the High Court at Kisumu of the murder of BOK, committed on 27th December 2017 at Kinyimon Village, Kisumu East, and sentenced to thirty-five years imprisonment. On appeal he did not challenge his conviction; he attacked only the sentence, contending that the trial judge failed to consider his mitigation - that he was a first-time offender with a dependent family - and that the sentence was manifestly excessive. He sought a reduction to twenty years. The respondent opposed, arguing the sentence was proportionate given that the maximum penalty for murder is death, though conceding that the remand period should be computed under Section 333(2) of the Criminal Procedure Code. The Court of Appeal (Asike-Makhandia, H.A. Omondi and L. Kimaru, JJAA) applied the settled principles in Gacheru v Republic, under which an appellate court interferes with sentence only where it is manifestly excessive, a material factor was overlooked, wrong material was considered, or a wrong principle was applied. The court held that the offence was grave and the loss of life irreversible, but that the appellant's mitigation as a remorseful first offender with a wife and young child was not accorded substantial weight, rendering the thirty-five year term harsher and manifestly excessive. The appeal was allowed only to the extent that the sentence was reduced to twenty-five years imprisonment, to run from the date of the appellant's arrest on 28th December 2017 pursuant to Section 333(2) of the Criminal Procedure Code. No costs order was pronounced.

Key legal issues

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01

Test for interference with sentence on appeal

Holding

The appellate court will not easily interfere with sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.

Reasoning

The court adopted the classic formulation in Gacheru v Republic, reaffirming that sentencing is a discretionary function of the trial court resting on the facts of each case. Disagreement with the sentence alone is insufficient; the appellant must demonstrate one of the enumerated grounds before the appellate court will disturb the sentence.

p. 3
02

Weight to be accorded to mitigation and offender individualisation

Holding

Although a custodial sentence was inevitable, 35 years for a first offender was manifestly excessive because the mitigation was noted but not given substantial weight.

Reasoning

The court weighed the gravity of the offence - loss of life is irreversible - against mitigating factors: the appellant was a first offender, was remorseful, and had a wife and young child dependent on him. Balancing retribution, deterrence, rehabilitation and community protection, the court found the sentence harsher than warranted and reduced it to 25 years.

p. 3
03

Computation of sentence under Section 333(2) of the Criminal Procedure Code

Holding

The sentence must run from the date of the appellant's arrest, 28th December 2017, as the remand period was not computed by the trial court.

Reasoning

Counsel for the appellant submitted, and the prosecution conceded, that the time the appellant spent in remand custody was not computed when the custodial sentence was imposed. The court applied Section 333(2) of the Criminal Procedure Code and directed that the sentence run from the date of arrest.

p. 2

Legal principles established

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  • An appellate court will not easily interfere with sentence unless it is manifestly excessive in the circumstances of the case, or the trial court overlooked some material factor, took into account some wrong material, or acted on a wrong principle.
  • Where mitigation is noted but not accorded substantial weight, and the sentence is on the harsher side for a first offender, the appellate court may interfere with sentence.
  • A sentence must reflect the seriousness of the offence while individualising the sentence to fit both the crime and the offender.
  • Under Section 333(2) of the Criminal Procedure Code, a custodial sentence must run from the date of the accused's arrest.

Court orders

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  1. 1.The sentence of thirty-five (35) years imprisonment is set aside and substituted with a sentence of twenty-five (25) years imprisonment
  2. 2.The sentence shall run from the date of the appellant's arrest, being 28th December 2017, pursuant to Section 333(2) of the Criminal Procedure Code
On appeal from
High Court of Kenya at Kisumu
Not stated in judgment
Jurisdiction invoked
First appellate/second appellate jurisdiction under the Court of Appeal's appellate powers over High Court criminal convictions and sentences (criminal appeal)

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, "Evans Otieno Adon'go v Republic", Case Analysis (2026). Criminal Appeal (sentence) - memorandum of appeal dated 24th February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/605/eng@2026-03-13

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