1. The accused persons herein, Mwangombe Mgandi Mangale, Hussein Robert Tsuma, Safari Charo Kalama, Ngala Mwangudu Mganga and Hamisi Mgandi Mangale were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code .
2. Particulars are that on the night of 26 th and 27 th June 2017 at Nyamalani village, Mackinon road location in Kinango sub-county within Kwale County in the Republic of Kenya, jointly murdered Elias Kalama Karisa.
3. They pleaded not guilty to the charge and after a full trial they were found guilty and subsequently convicted to the charge. The court then called for both Victim Impact Statement and Pre-sentence inquiry Report. The same were prepared and filed by Stephen Muthoka, Senior Probation and aftercare services officer.
4. The accused person’s advocates were served with the reports and submitted on mitigation. Mr Ngiri submitted on behalf of the state.
5. Sentencing is an exercise of the Court’s discretion. The Court is guided by the Constitution, any other relevant laws on sentencing and the 2016 Judiciary of Kenya Sentencing Policy Guidelines. Despite the importance of the guidelines, sentencing remains the exercise of judicial jurisdiction as was expressed by the Supreme Court in Francis Karioko Muruatetu & Another -V- Republic (2017) eKLR where the Court held: -
“(72) we wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process”.
6. Page 15, paragraph 4.1 of the Sentencing Policy Guidelines provides as follows: -
(i) Retribution : to punish the offender for his/her criminal conduct in a just manner;
(ii) Deterrence ; to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences;
(iii) Rehabilitation ; to enable the offender reform from his/her criminal disposition and become a law-abiding person;
(iv) Restorative justice ; to address the needs arising from the criminal conduct such as loss and damages;
(v) Community Protection ; to police the community by incapacitating the offender.
(vi) Denunciation ; to communicate the community’s condemnation of the criminal conduct.
(vii) Reconciliation ; to mend the relationship between the offender the victim and the community
(viii) Reintegration ; To facilitate the re-entry of the offender into the society.
7. In sentencing, the court also considers various mitigating factors. (See Muruatetu Case)
i. Age of the offender;
ii. Being a first offender;
iii. Whether the offender pleaded guilty;
iv. Character and record of the offender;
v. Commission of the offence in response to gender-based violence;
vi. Remorsefulness of the offender;
vii. The possibility of reform and social re-adaptation of the offender;
viii. Any other factor that the court considers relevant.
8. In this case, for Mwangome Mgandi Mangale it is submitted that he is a first offender. He is a family man aged 27 years old. He denies his engagement in committing the offence and the actions leading to the death of the deceased. He was 19 years when the offence occurred. He has a fix place of abode with no security concerns raised back in his home village. On his risk and responsiveness assessment, the offender passed as a medium risk offender.
9. The 2 nd accused, Hussein Robert Tsuma, it is submitted that he is a first offender and a family man aged 32 years old with no responsibilities bestowed upon him. The deceased is his uncle (a brother to the accused person’s mother). Having been brought up in an environment filled with witchcraft accusations the accused person adopted it as a threat and was therefore easily influenced into the offence by others. He however denies his involvement in the offence despite the conviction. He has been in remand for over 8 years.
10. The 3 rd accused, Safari Charo Kalama, it is submitted that he is a first offender and a family man aged about 31 years old and with no responsibilities bestowed upon him. He denies his involvement in the offence despite the conviction. He has a fixed place of abode with moderate security concerns raised bac in his home village. On his risk and responsiveness assessment, the offender passed as a medium risk offender.
11. The 4 th accused, Ngala Mwagundu Mganda, he is aged 32 years old. He is a first offender. He is a grandchild to the deceased. He denies any involvement in committing the criminal offence. Despite his objection to the conviction he on the other hand pleads for leniency during sentencing and that the court considers him for lesser sentence as he has learnt his leeson and is ready to lawfully handle issues at hand. He prays that the time spent in custody be considered.
12. The 5 th accused, Hamisi Mgandi Mangale, he is aged 23 years’ old and it is clear that he was a minor when the incident occurred. He denies any engagement in committing the offence and the actions leading to the death of the deceased. He was a young man accompanying those who were guarding farms adjacent to that of the deceased.
13. Having taken the mitigation into account, the pre-sentence reports and the circumstances surrounding the commission of the offence, this court sentences: -
i. The 1 st offender, Mwangome Mgandi Mangale is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He was released on bond on 20/4/2021. The period spent in custody to be considered in computation of the prison term.
ii. The 2 nd offender, Hussein Robert Tsuma is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He failed to raise the bond terms and has been in custody since 13/7/2017. His sentence to start running from 13/7/2017.
iii. The 3 rd offender, Safari Charo Kalama is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He was released on bond on 30/10/2023. The period spent in custody be considered in computation of the prison term.
iv. The 4 th offender, Ngala Mwagundu Mganda is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He failed to raise the bond terms and has been in custody since 13/7/2017. His sentence to start running from 13/7/2017.
v. The 5 th offender, Hamisi Mgandi Mangale is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He was then released on bond on 20/4/2021. The period spent in custody to be considered in computation of the prison term.
14. Right of appeal against both the judgment and sentence explained to the offenders in Kiswahili.
15. It is so ordered.
DELIVERED, DATED and SIGNED at MOMBASA virtually on this 18 th day of MARCH 2026.
WENDY KAGENDO MICHENI
JUDGE
2. Particulars are that on the night of 26 th and 27 th June 2017 at Nyamalani village, Mackinon road location in Kinango sub-county within Kwale County in the Republic of Kenya, jointly murdered Elias Kalama Karisa.
3. They pleaded not guilty to the charge and after a full trial they were found guilty and subsequently convicted to the charge. The court then called for both Victim Impact Statement and Pre-sentence inquiry Report. The same were prepared and filed by Stephen Muthoka, Senior Probation and aftercare services officer.
4. The accused person’s advocates were served with the reports and submitted on mitigation. Mr Ngiri submitted on behalf of the state.
5. Sentencing is an exercise of the Court’s discretion. The Court is guided by the Constitution, any other relevant laws on sentencing and the 2016 Judiciary of Kenya Sentencing Policy Guidelines. Despite the importance of the guidelines, sentencing remains the exercise of judicial jurisdiction as was expressed by the Supreme Court in Francis Karioko Muruatetu & Another -V- Republic (2017) eKLR where the Court held: -
“(72) we wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process”.
6. Page 15, paragraph 4.1 of the Sentencing Policy Guidelines provides as follows: -
(i) Retribution : to punish the offender for his/her criminal conduct in a just manner;
(ii) Deterrence ; to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences;
(iii) Rehabilitation ; to enable the offender reform from his/her criminal disposition and become a law-abiding person;
(iv) Restorative justice ; to address the needs arising from the criminal conduct such as loss and damages;
(v) Community Protection ; to police the community by incapacitating the offender.
(vi) Denunciation ; to communicate the community’s condemnation of the criminal conduct.
(vii) Reconciliation ; to mend the relationship between the offender the victim and the community
(viii) Reintegration ; To facilitate the re-entry of the offender into the society.
7. In sentencing, the court also considers various mitigating factors. (See Muruatetu Case)
i. Age of the offender;
ii. Being a first offender;
iii. Whether the offender pleaded guilty;
iv. Character and record of the offender;
v. Commission of the offence in response to gender-based violence;
vi. Remorsefulness of the offender;
vii. The possibility of reform and social re-adaptation of the offender;
viii. Any other factor that the court considers relevant.
8. In this case, for Mwangome Mgandi Mangale it is submitted that he is a first offender. He is a family man aged 27 years old. He denies his engagement in committing the offence and the actions leading to the death of the deceased. He was 19 years when the offence occurred. He has a fix place of abode with no security concerns raised back in his home village. On his risk and responsiveness assessment, the offender passed as a medium risk offender.
9. The 2 nd accused, Hussein Robert Tsuma, it is submitted that he is a first offender and a family man aged 32 years old with no responsibilities bestowed upon him. The deceased is his uncle (a brother to the accused person’s mother). Having been brought up in an environment filled with witchcraft accusations the accused person adopted it as a threat and was therefore easily influenced into the offence by others. He however denies his involvement in the offence despite the conviction. He has been in remand for over 8 years.
10. The 3 rd accused, Safari Charo Kalama, it is submitted that he is a first offender and a family man aged about 31 years old and with no responsibilities bestowed upon him. He denies his involvement in the offence despite the conviction. He has a fixed place of abode with moderate security concerns raised bac in his home village. On his risk and responsiveness assessment, the offender passed as a medium risk offender.
11. The 4 th accused, Ngala Mwagundu Mganda, he is aged 32 years old. He is a first offender. He is a grandchild to the deceased. He denies any involvement in committing the criminal offence. Despite his objection to the conviction he on the other hand pleads for leniency during sentencing and that the court considers him for lesser sentence as he has learnt his leeson and is ready to lawfully handle issues at hand. He prays that the time spent in custody be considered.
12. The 5 th accused, Hamisi Mgandi Mangale, he is aged 23 years’ old and it is clear that he was a minor when the incident occurred. He denies any engagement in committing the offence and the actions leading to the death of the deceased. He was a young man accompanying those who were guarding farms adjacent to that of the deceased.
13. Having taken the mitigation into account, the pre-sentence reports and the circumstances surrounding the commission of the offence, this court sentences: -
i. The 1 st offender, Mwangome Mgandi Mangale is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He was released on bond on 20/4/2021. The period spent in custody to be considered in computation of the prison term.
ii. The 2 nd offender, Hussein Robert Tsuma is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He failed to raise the bond terms and has been in custody since 13/7/2017. His sentence to start running from 13/7/2017.
iii. The 3 rd offender, Safari Charo Kalama is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He was released on bond on 30/10/2023. The period spent in custody be considered in computation of the prison term.
iv. The 4 th offender, Ngala Mwagundu Mganda is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He failed to raise the bond terms and has been in custody since 13/7/2017. His sentence to start running from 13/7/2017.
v. The 5 th offender, Hamisi Mgandi Mangale is sentenced to serve 15 years’ imprisonment. He was arraigned in court on 13/7/2017. He was then released on bond on 20/4/2021. The period spent in custody to be considered in computation of the prison term.
14. Right of appeal against both the judgment and sentence explained to the offenders in Kiswahili.
15. It is so ordered.
DELIVERED, DATED and SIGNED at MOMBASA virtually on this 18 th day of MARCH 2026.
WENDY KAGENDO MICHENI
JUDGE