Adul v Republic (Criminal Appeal E298 of 2022) [2026] KECA 1426 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a death sentence with 20 years' imprisonment for murder, confirming that mandatory death sentences are unconstitutional 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 High Court meted out a harsh and excessive sentence
- 2.Whether the High Court adhered to the sentencing guidelines
Key legal issues
#Mandatory death sentence for murder
The imposition of the death sentence was harsh and unconstitutional in light of Muruatetu, which struck down the mandatory death penalty for murder
The trial judge sentenced the appellant on 6th October, 2017, before the Supreme Court's Muruatetu decision of 14th December, 2017, and stated that its hands were tied by the then-mandatory sentence. The Court of Appeal held that consistent with Muruatetu, judges must weigh mitigating and aggravating circumstances, and the death sentence imposed without that discretion was harsh and unconstitutional.
Interference with trial court sentence on appeal
The settled principles from Gacheru v Republic apply: the appellate court interferes only where the sentence is manifestly excessive, a material factor was overlooked, wrong material was considered, or a wrong principle was applied
The court adopted the Gacheru principles as the framework for reviewing sentence. Although it affirmed that appellate courts do not easily interfere with discretionary sentencing, it found the death sentence here unconstitutional under Muruatetu and, having considered mitigation (first offender, age 25, family, remorse, potential to reform) against aggravating factors (gender-based violence, manner of killing, impact on the victim's family), substituted a determinate term.
Credit for time spent in remand under Section 333(2) of the Criminal Procedure Code
The substituted sentence must be computed to exclude the period the appellant spent in remand from 3rd July, 2015 to 17th September, 2015
The court applied Section 333(2), which requires that a convicted person's sentence commence on the date of pronouncement but includes a proviso obliging courts to reduce the sentence by the time already spent in custody awaiting or during trial. The appellant was in remand from arraignment on 3rd July, 2015 until release on bond on 17th September, 2015, and that period was ordered excluded in computing the twenty-year term.
Legal principles established
#- An appellate court will not lightly interfere with a trial court's 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
- Following Muruatetu, the mandatory death sentence for murder under Section 204 of the Penal Code is unconstitutional and judges must have discretion in sentencing
- Under the proviso to Section 333(2) of the Criminal Procedure Code, a sentence must be reduced by factoring in time spent in custody awaiting or during trial
Court orders
#- 1.The appellant's conviction for murder contrary to section 203 as read with section 204 of the Penal Code is confirmed
- 2.The sentence of death is set aside and substituted with a sentence of imprisonment for twenty (20) years
- 3.The imprisonment runs effective the date of sentence on 6th October, 2017 and is computed excluding the remand period from 3rd July, 2015 to 17th September, 2015
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- First appellate/second appellate review of sentence in a murder conviction under Section 203 and 204 of the Penal Code; appeal against sentence only
Relief refused
#Impugnment of conviction (raised in a memorandum of appeal dated 17th April, 2026)
The appeal was prosecuted on sentence only, and the court confirmed the conviction
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.
We set aside the imposed sentence of death and substitute therefor a sentence of imprisonment for twenty (20) years.
The upshot is that we confirm the appellant’s conviction for the ofience of murder contrary to section 203 as read with section 204 of the Penal Code but set aside his sentence to sufier death and substitute therefor the sentence of imprisonment for twenty (20) years computed excluding the remand period from 3rd July, 2015 to17th September, 2015.
We therefore find that consistent with that holding the imposition of the sentence for the appellant to sufier death was harsh and unconstitutional.
it includes a proviso that requires trial courts to reduce the sentence by factoring in the time an accused person has already spent in custody awaiting or during the trial.
Issues in the judgment
#Memorandum of appeal dated 16th December 2025 and submissions dated 5th January 2026 predate the appeal against a conviction and sentence delivered on 6th October 2017 only if the appeal is a later one, but the dates are internally consistent with a 2026 hearing; however, the judgment states a memorandum 'dated 16th December 2025' while the hearing occurred 12th May 2026 - internally consistent, but the second memorandum is dated 17th April, 2026 yet is said to set out grounds on conviction although counsel confirmed the appeal was on sentence only
The judgment contains no costs order despite being a fully determined appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adul v Republic (Criminal Appeal E298 of 2022) [2026] KECA 1426 (KLR)", Case Analysis (2026). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1426/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.