Being an appeal against the decision of the Chief Magistrates court at Kangundo (Hon D Sure for the offence of threatening to kill contrary to section 223(1) of the Penal Code delivered on 19th September 2024.
The appellant filed a petition of appeal which was presented to court on 3rd October 2024. The grounds of appeal were:
1. That the learned trial magistrate erred in both law and fact by explicitly not explaining to him the consequences of his plea of guilt.
2. That the learned trial magistrate erred in matters of law and in fact by failing to consider time spent in remand custody pursuant to section 333(2) of the Criminal Procedure Code cap 75 Laws of Kenya.
3. That the Honorable Court may issue any other orders it deems fit in the circumstances of which he promises to abide by.
He later filed supplementary grounds and submissions which are undated. Key indicated that he was appealing against the sentence and conviction.
In the submissions he stated that the offense of threatening to kill does not call for men's rare and causation and it was upon the prosecution to prove the actus reus. He asked the court to acquit him as the prosecution had not proved the charges.
He submitted that the charge was not explained to him nor the consequences of the plea of guilt.
Further, it was submitted that the trial court failed to consider the time spent in remand contrary to section 333(2) of the Penal Code.
The prosecution filed their submissions which are dated 17th April 2026. It was submitted that though the appellant has claimed it that the evidence was inconclusive, this is irrelevant to the appeal because he was convicted on his own plea of guilt after both the charge, particulars and facts were read to him.
On the sentence it will submitted that section 2231 provides that if one is convicted for threatening to kill another then he is liable to imprisonment for 10 years. The appellant here was signed 10,000 or to self four years improvement. Play submitted that the sentence passed was within the law and sufficient.
They urged the court to consider the fact that the complainant was the appellant's own mother who, during presentencing hearing, had informed the court that should the appellant be given a non - custodial sentence, he is likely to do worse things to her and that as a family they do not want him at home. The quote noted that she was very elderly and was walking with the support of a stick.
The relied on the Court of Appeal of East Africa case of Wanjema versus Republic 1971 EA 479 where the court held that:
“ An appellate court will not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on the wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
They contended that the trial Court was right in sentencing the appellant.
They conceded that the court had not put into consideration the three months spent in custody.
They urged the court to uphold the conviction and sentence.
It is settled law that the duty of a first appellate court is to evaluate afresh the evidence used before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This was stated in the case of Selle and another versus Associated Motor Boat Company Limited and others (1968) EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in a re - considering and re- evaluating the evidence so as to draw its own conclusions, it always had to bear mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
I have looked at the proceedings from the lower court and noted that the appellant pleaded guilty to the charge after he was warned of the seriousness of the offence. He cannot now appeal on the facts but only on the sentence.
On the sentence, section 223 (1) of the Penal Code provides that one can be sentenced to 10 years imprisonment upon conviction. The appellant was fined Ksh 300,000 and in default to serve four years imprisonment.
I have also noted the sentiments expressed by the complainant who is the appellant's mother, that the appellant is a threat to her life and that he forgot she was his mother as he abused her while mentioning her vagina. She expressly stated that the family does not want him at home.
Bearing in mind the complainants fears and pain at being disrespected by her son I see no reason to interfere with the sentence which was lawful in any case.
Though the trial court did not indicate that he had considered the 3 months that the appellant had spent in remand, I note that the imprisonment was in default to the fine.
The sentence is upheld. The appeal on conviction is dismissed.
READ IN OPEN COURT THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF THE APPELLANT
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
M/S MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANT
The appellant filed a petition of appeal which was presented to court on 3rd October 2024. The grounds of appeal were:
1. That the learned trial magistrate erred in both law and fact by explicitly not explaining to him the consequences of his plea of guilt.
2. That the learned trial magistrate erred in matters of law and in fact by failing to consider time spent in remand custody pursuant to section 333(2) of the Criminal Procedure Code cap 75 Laws of Kenya.
3. That the Honorable Court may issue any other orders it deems fit in the circumstances of which he promises to abide by.
He later filed supplementary grounds and submissions which are undated. Key indicated that he was appealing against the sentence and conviction.
In the submissions he stated that the offense of threatening to kill does not call for men's rare and causation and it was upon the prosecution to prove the actus reus. He asked the court to acquit him as the prosecution had not proved the charges.
He submitted that the charge was not explained to him nor the consequences of the plea of guilt.
Further, it was submitted that the trial court failed to consider the time spent in remand contrary to section 333(2) of the Penal Code.
The prosecution filed their submissions which are dated 17th April 2026. It was submitted that though the appellant has claimed it that the evidence was inconclusive, this is irrelevant to the appeal because he was convicted on his own plea of guilt after both the charge, particulars and facts were read to him.
On the sentence it will submitted that section 2231 provides that if one is convicted for threatening to kill another then he is liable to imprisonment for 10 years. The appellant here was signed 10,000 or to self four years improvement. Play submitted that the sentence passed was within the law and sufficient.
They urged the court to consider the fact that the complainant was the appellant's own mother who, during presentencing hearing, had informed the court that should the appellant be given a non - custodial sentence, he is likely to do worse things to her and that as a family they do not want him at home. The quote noted that she was very elderly and was walking with the support of a stick.
The relied on the Court of Appeal of East Africa case of Wanjema versus Republic 1971 EA 479 where the court held that:
“ An appellate court will not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on the wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
They contended that the trial Court was right in sentencing the appellant.
They conceded that the court had not put into consideration the three months spent in custody.
They urged the court to uphold the conviction and sentence.
It is settled law that the duty of a first appellate court is to evaluate afresh the evidence used before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This was stated in the case of Selle and another versus Associated Motor Boat Company Limited and others (1968) EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in a re - considering and re- evaluating the evidence so as to draw its own conclusions, it always had to bear mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
I have looked at the proceedings from the lower court and noted that the appellant pleaded guilty to the charge after he was warned of the seriousness of the offence. He cannot now appeal on the facts but only on the sentence.
On the sentence, section 223 (1) of the Penal Code provides that one can be sentenced to 10 years imprisonment upon conviction. The appellant was fined Ksh 300,000 and in default to serve four years imprisonment.
I have also noted the sentiments expressed by the complainant who is the appellant's mother, that the appellant is a threat to her life and that he forgot she was his mother as he abused her while mentioning her vagina. She expressly stated that the family does not want him at home.
Bearing in mind the complainants fears and pain at being disrespected by her son I see no reason to interfere with the sentence which was lawful in any case.
Though the trial court did not indicate that he had considered the 3 months that the appellant had spent in remand, I note that the imprisonment was in default to the fine.
The sentence is upheld. The appeal on conviction is dismissed.
READ IN OPEN COURT THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF THE APPELLANT
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
M/S MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANT