Chore v Republic (Criminal Appeal E125 of 2024) [2025] KEHC 12559 (KLR) (12 September 2025) (Judgment)
Neutral citation:
[2025] KEHC 12559 (KLR)
Republic of Kenya
Criminal Appeal E125 of 2024
DKN Magare, J
September 12, 2025
Between
Irene Nyamusi Chore
Appellant
and
Republic
Respondent
(Appeal from the judgment of the Hon B. O. Omwansa, SPM given in Kisii Chief Magistrate’s Court criminal case number 121 of 2023 on 28.11.2024 and sentencing on 4.12.2024)
Judgment
1.This is Appeal from the judgment of the Hon B. O. Omwansa, SPM given in Kisii Chief Magistrate’s Court criminal case number E121 of 2023 on 28.11.2024 and sentencing on 4.12.2024. The appellant was convicted of an offence of child stealing contrary to section 174 (1) (a) of the penal code. The particulars were that on 30.11.2022 jointly with others not before the court, took JM, a child aged 1 month with intent to deprive CN, the parent who had lawful custody.
2.In construing the legality of the sentence imposed, the starting point must be the statutory framework creating the offence and prescribing the penalty. The court is bound by the limits set out in the charging section and must also exercise discretion within the confines of constitutional principles and sentencing jurisprudence. The Appellant was charged under Section 174 (1) (a) of the Penal Code, which provides as follow(1)Any person who, with intent to deprive any parent, guardian or other person who has the lawful care or charge of a child under the age of fourteen years of the possession of the child-(a)Forcibly or fraudulently takes or entices away or detains the child; or(b)Receives or harbours the child, knowing it to have been so taken or enticed away or detained, is guilty of a felony and is liable to imprisonment for seven years.(2)It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father.
3.The Appellant was convicted and sentenced to five years’ imprisonment. Although the trial court called for a pre-sentence social enquiry report, no reference was made to it when passing sentence. Further, while the Appellant duly offered mitigation, the record does not indicate whether the trial court considered or disregarded the same. Aggrieved by the sentence, the Appellant lodged an appeal and raised the following grounds of appeal:1.That my lord the trial magistrate erred in law and fact by not considering the appellant is a first offender sentencing the appellant to 5 years imprisonment.2.That my lord I am against the conviction of this case, that I am humbly requesting this superior court to revisit the sentence of 5 years.3.That, my lord I am the bread winner of our family, a mother of seven (7) children.4.That my lord I pleaded guilty to save court’s time.
4.Her claim was that she is a first offender with no prior record before the Court. She further stated that she demonstrateded remorse for the offence. She emphasized that she is the sole breadwinner of her family and a mother of seven children who depend entirely on her for their upkeep. In those circumstances, she contended that the sentence of five years’ imprisonment was manifestly harsh and prayed that the Court exercise leniency by reviewing the sentence and imposing a more lenient punishment.
5.The Respondent filed submissions dated 5.09.2025, they addressed the question of conviction which is not in issue in the appeal. On sentence they stated that the sentence was proper as the appellant was given 5 out of possible 7 years. They stated that the court exercised its discretion judiciously.
Analysis
6.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. The duty of the first Appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -
7.An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. In the case of Okeno v Republic [1972] EA 32 at 36 the East Africa Court of Appeal stated on the duty of the Court on a first appeal:
8.The issue in this case is whether the prosecution proved is case to the required standards. Most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481, comes in handy in describing the legal burden of proof in criminal matters, that;
9.In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme court of Canada explained the standard of proof as doth: -
10.The legal burden refers to the burden of proof which remains constant throughout the trial. It is the obligation of a party to establish the facts and contentions necessary to support its case, in this case the prosecutor. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
11.The standard of proof required in such cases was addressed by Brennan, J. in the United States Supreme Court decision of In re Winship 397 U.S. 358 (1970), at pages 361–364, where he stated that:
12.Sentencese is a matter that rests in the discretion of the trial court. The Court of Appeal, on its part, in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:
13.Noting that sentencing is based on a judicial officer’s discretion, this Court must be careful not to interfere with such a decision as stated in the case of Hillary Kipkirui Mutai v Republic [2022] eKLR:9.Sentencing is an important aspect of the administration of justice. Noting that sentencing is based on a judicial officer’s discretion, this Court must be careful not to interfere with such a decision, unless it is demonstrated that the sentence was manifestly excessive, was illegal, improper or founded based on misrepresentation of material facts.
14.The appeal is not on conviction but sentence. Having not contested the conviction, this court is of the considered view that the only question is as regards sentence. It is essentially a revision of the sentence.
15.There are two aspects of the sentence that the court is to have a look at, that is the completeness of sentence and legality or harshness of sentence. Legality of the sentence is anchored on whether the trial court took into account factors that the law requires it to consider, and whether it failed to take into account factors it was entitled to consider.
16.It must be remembered that sentencing is a matter of discretion of the trial court and may be interfered only in exceptional circumstances. In the case of MM1 v Republic [2022] eKLR, the Court referred to the case of Mokela vs. The State (135/11) [2011] ZASCA 166 where the Supreme Court of South Africa held that:
17.This court will not alter a sentence unless the trial court has acted upon wrong principles or overlooked some material factors. The Court of Appeal in Ogolla s/o Owuor vs. Republic [1954] EACA 270, held that:
18.The principle is that an appellate court will only interfere with sentence where:a.The trial court acted on a wrong principle;b.The trial court failed to consider relevant factors;c.The sentence is manifestly harsh/excessive; ord.The sentence is illegal (e.g., contrary to statute).
19.the foregoing was addressed succinctly in the case of Shadrack Kipkoech Kogo vs R. Eldoret Criminal Appeal No. 253 of 2003 the Court of Appeal held that:
20.The court is by law required to take into account the time spent in custody. This is also anchored in the Sentencing Guidelines. The Sentencing Guidelines (2023) provide thus:2.3.18Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offence that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.2.3.19Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated- and courts should make an enquiry particularly with unrepresented offenders- for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.2.3.20An offender convicted of a misdemeanor and who had been in custody throughout the trial for a period equal to or exceeding the maximum term of imprisonment provided for that offence, should be deemed to have served their sentence and be released immediately.”
21.The record does not show that the time taken in custody was taken into consideration. On the face of it, time in custody was not considered contrary section 333(2) of the Criminal Procedure Code provides:(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
22.This Court has the duty to expressly demonstrate that it considered the period the Appellant spent in custody. It is not sufficient for a sentencing court to merely state, in a general manner, that it has “taken into account” the period in custody, without any justification or indication on the record of how such consideration affected the ultimate sentence. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal was categorical that:
23.The guiding principle is that credit for time spent in custody must be real and apparent on the record, not illusory or perfunctory. Failure to comply renders the sentence incomplete and unlawful. Therefore, whichever sentence is meted out, the appellant is entitled to have the mathematical days counted and reconned with.
24.Failure to take to consideration the period spent in custody results in incompleteness of the sentence. The record shows that the Appellant was arrested on 13.1.2023 and remained in custody until her conviction and sentencing in 2024. in this case it will result in an excessive number of days being spent in custody over and above not only the sentence but the maximum sentence under the penal code. An appellate court is duty-bound to interfere.
25.The trial court failed to take into account the period of pre-trial and pre-conviction custody when computing the ultimate sentence. This omission was contrary to Section 333(2) of the Criminal Procedure Code, which expressly obligates a sentencing court to consider and credit the time an accused person has already spent in custody. By disregarding this mandatory requirement, the trial court imposed a sentence that was not only incomplete but also unlawful. The omission contravened both the statutory framework and the well-established principle that punishment must reflect not only the offence but also the actual period of deprivation of liberty suffered by the accused.
26.Secondly the court must consider aggravating factors, for example, the fact that the child was not found, the child was literally sold for a paltry sum of Ksh. 15,000/=. This does not reflect the value of human life. It is less than a price of a he goat or a Dorper sheep. The fact that the Appellant had reckless disregard to human life must have consequences. However, the court did not consider these factors including the fact that she had seven children and had, prior to this offence and painful circumstances raised the complainant.
27.Thirdly was there a need for the court to consider mitigation? Before sentencing, the court must not only allow an accused person to mitigate but must also demonstrate, on the record, how such mitigation was weighed in arriving at the sentence. It is not enough for the court to merely call for pre-sentence or probation reports and then proceed to impose sentence without indicating whether and how the mitigation was taken into account.
28.The record must reflect the court’s appreciation of the mitigating circumstances advanced by the accused, together with any aggravating factors, and then show the balance struck in arriving at the ultimate sentence. in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment), the Supreme Court [DK Maraga, CJ, PM Mwilu, DCJ & V-P, JB Ojwang, SC Wanjala, NS Ndungu & I Lenaola, SCJJ] underscored the centrality of mitigation in the sentencing process, holding as follows:(50)We consider Reyes and Woodson persuasive on the necessity of mitigation before imposing a death sentence for murder. We will add another perspective. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity protected. It is for this Court to ensure that all persons enjoy the rights to dignity. Failing to allow a Judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violates their right to dignity.(52)We are in agreement and affirm the Court of Appeal decision in Mutiso that whilst the Constitution recognizes the death penalty as being lawful, it does not provide that when a conviction for murder is recorded, only the death sentence shall be imposed. We also agree with the High Court's statement in Joseph Kaberia Kahinga that mitigation does have a place in the trial process with regard to convicted persons pursuant to Section 204 of the Penal Code. It is during mitigation, after conviction and before sentencing, that the offender's version of events may be heavy with pathos necessitating the Court to consider an aspect that may have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness.(53)If a Judge does not have discretion to take into account mitigating circumstances it is possible to overlook some personal history and the circumstances of the offender which may make the sentence wholly disproportionate to the accused's criminal culpability. Further, imposing the death penalty on all individuals convicted of murder, despite the fact that the crime of murder can be committed with varying degrees of gravity and culpability fails to reflect the exceptional nature of the death penalty as a form of punishment. Consequently, failure to individualise the circumstances of an offence or offender may result in the undesirable effect of 'overpunishing' the convict.(54)A fair trial has many facets, and includes mitigation and, the right to appeal or apply for review by a higher Court as prescribed by law. Counsel for the petitioners and amici curiae both urged that the mandatory death sentence denied the petitioners enjoyment of their rights under Article 50 (2) (q) of the Constitution. On this issue, we are persuaded by the decision in Edwards v The Bahamas (Report No. 48/01, 4th April 2001) which was decided by the Inter-American Commission on Human Rights. In that matter, Michael Edwards was convicted of murder and a mandatory death sentence imposed on him
29.The Supreme Court was of the view that mitigation affords the trial court the opportunity to apply proportionality and to individualize the sentence to the offender, thereby giving effect to the constitutional principles of human dignity and fair trial under Articles 25(c) and 28 of the Constitution. Accordingly, where a trial court disregards mitigation, or fails to show on record that it considered it, the resulting sentence is vitiated by error of principle and is liable to interference on appeal.
30.The question of mitigation was considered in a persuasive decision of Cunningham v. California, 549 U.S. 270 (2007), where it was stated that aggravating facts must be proved beyond reasonable doubt.
31.Mitigation is critical for it enables the Court to arrive at an appropriate and suitable sentence Fatuma Hassan Salo V Republic [2006] eKLRIt also apparent that the trial Court did not consider the Appellant’s mitigation. In sentencing, mitigation is critical for it enables the Court to arrive at an appropriate and suitable sentence. Failure to consider mitigation as in this case may lead the trial Court imposing a sentence that is unreasonable, excessive or grossly inadequate.
32.Mitigation is a vital component of the trial process, as required by Sections 216 and 329 of the Criminal Procedure Code. Ouma & another v Republic [2025] KECA 1063 (KLR), the court of appeal stated thus:
33.The court of appeal [Mwera, Warsame, Kiage, Gatembu & J. Mohammed JJ.A], in considering mitigation in the case Joseph Njuguna Mwaura & 2 others v Republic [2013] KECA 541 (KLR), stated as follows:
34.Finally on the question of mitigation, the sentencing guidelines 2023 provide for the following: -
35.The court is alive to the fact that other offences, including murder may follow if the appellant does not produce evidence that the child is alive. Having stolen the child she has a livelong obligation to produce evidence of proof of life, other it must be presumed that the child died at her hands, for which Article 157 of the constitution can guide.
36.Given that the Appellant’s mitigation was ignored and the trial court failed to credit the period already spent in custody, the sentence imposed was manifestly harsh and unlawful. The Appellant is a first offender, a factor which ought to have been considered in mitigation and which ordinarily entitles an accused person to leniency. the appellant has seven children and a sole bread winner. She also gave shelter to the complainant minor. She was remorseful. Accordingly, the proper sentence in the circumstances is 4 years’ imprisonment, to run from 13.1.20 2023, being the date of arrest when the Appellant.
37.In the circumstances the appeal on sentence is allowed. The sentence of 5 years imprisonment set aside and substituted with 4 years’ imprisonment, to run from 13.1.20 2023, being the date of arrest when the Appellant.
Determination
29.In the circumstances the court makes the following orders: -a.In the circumstances the appeal on sentence is allowed. The sentence of 5 years imprisonment set aside and substituted with 4 years’ imprisonment, to run from 13.1.20 2023, being the date of arrest when the Appellant.b.The file is closed.
DELIVERED, DATED AND SIGNED AT VIRTUALLY ON THIS 12TH DAY OF SEPTEMBER 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Appellant – PresentKoima for the StateCourt Assistant - Matiko