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Court of AppealPartially AllowedNot stated in the judgment (Criminal Appeal against conviction and sentence, High Court murder trial at Bungoma)

Khaoya v Republic (Criminal Appeal E071 of 2021) [2026] KECA 615 (KLR)

Court of Appeal of Kenya
13 March 2026
1,713 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cut a 25-year murder sentence to time served because the trial judge overlooked that the fatal fight was a one-off between drunk brothers.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Asike-Makhandia, H.A. Omondi and L. Kimaru, JJA) determined a second appeal by Dishon Nangalama Khaoya, who had been convicted of the murder of his younger brother, Silivano Wafubwa Khaoya, on 21st July 2017 in Bungoma County, and sentenced to 25 years imprisonment. The prosecution case rested on evidence placing the appellant at the scene, a blood-stained knife whose DNA matched the deceased, a charge and caution statement admitting the stabbing, and medical evidence of a fatal stab wound. At the plenary hearing, counsel for the appellant abandoned the appeal against conviction, which had alleged failure to prove malice aforethought, reliance on an involuntary and contradictory statement of inquiry, and shifting of the burden of proof, and pursued only the appeal on sentence. Prosecution counsel conceded, noting the incident was isolated, the parties were brothers who had never quarrelled before, and both were drunk, with the deceased triggering the confrontation. Applying Bernard Kimani Gacheru v Republic, the court held it would not disturb sentence absent manifest excessiveness, an overlooked material factor, wrong material, or a wrong principle. Finding the trial judge had overlooked these material circumstances, the court set aside the 25-year sentence and substituted the period already served, ordering the appellant's immediate release unless otherwise lawfully held. The conviction stands; the appeal succeeded only on sentence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal against conviction, originally premised on failure to prove malice aforethought, reliance on an allegedly involuntary statement of inquiry, and shifting of the burden of proof, should proceed
  2. 2.Whether the sentence of 25 years imprisonment was manifestly excessive or founded on wrong principles so as to warrant appellate interference

Key legal issues

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01

Interference with the trial court's discretion on sentence

Holding

The 25-year sentence was disturbed because the trial judge overlooked material circumstances: the offence was an isolated incident between brothers, both parties were drunk, and the deceased triggered the fight.

Reasoning

The court restated the settled principle from Bernard Kimani Gacheru v Republic that a first appellate court will not easily interfere with sentence merely because it would have imposed a lighter one. Interference is warranted only where the sentence is manifestly excessive or the sentencing court overlooked a material factor or acted on a wrong principle. Here, the prosecution conceded the incident was isolated and that both the appellant and the deceased were drunk, with the deceased triggering the fight. These were material mitigating circumstances the trial judge failed to weigh, justifying interference with the sentence while leaving the conviction intact after counsel abandoned the conviction appeal.

p. 4
02

Abandonment of grounds of appeal

Holding

Counsel for the appellant abandoned all grounds challenging conviction and argued only sentence, which the court accepted.

Reasoning

At the plenary hearing, Miss Lumallas, having consulted the appellant on sentencing factors, withdrew the appeal on conviction, leaving only the sentence grounds. The respondent's counsel conceded to the appeal on sentence. The court therefore determined only the sentencing question and made no findings on malice aforethought, the voluntariness of the statement of inquiry, or the alleged shifting of the burden of proof.

p. 3

Legal principles established

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  • 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.

Court orders

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  1. 1.The sentence of 25 years imprisonment is set aside and substituted with the period already served
  2. 2.The appellant is ordered set at liberty forthwith unless otherwise lawfully held
  3. 3.The appeal on sentence succeeds to that extent; the appeal on conviction was abandoned and the conviction stands

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appellate/second appellate criminal jurisdiction under the Court of Appeal's statutory appellate powers (specific provision not stated in the judgment)

Relief refused

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Appeal against conviction (quashing of conviction)

Abandoned by learned counsel for the appellant at the plenary hearing, with only the appeal on sentence pursued

p. 3

Costs

No costs order made in the judgment

Quotable passages

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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 appellate court will not easily interfere with a 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
p. 3Appellate interference with sentence
Even if the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not suficient grounds for interfering with the discretion of the trial court on sentence
p. 4Limits of appellate review of sentencing discretion
Accordingly, the sentence of 25 years’ imprisonment be set aside and substituted with a sentence sentencing the appellant to the period already served. He is ordered set at liberty forthwith unless otherwise lawfully held.
p. 4Final orders - substitution of sentence
The appeal on sentence thus succeeds to that extent.
p. 4Extent of success of the appeal

Issues in the judgment

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minor

The judgment records inconsistent remand dates: counsel stated the appellant was in remand custody since arrest in 2021 'until conclusion of his trial and sentence in the year 2021', which cannot both be true as stated.

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, "Khaoya v Republic (Criminal Appeal E071 of 2021) [2026] KECA 615 (KLR)", Case Analysis (2026). Not stated in the judgment (Criminal Appeal against conviction and sentence, High Court murder trial at Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/615/eng@2026-03-13

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