REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL CASE NO. E006 OF 2024
REPUBLIC…………………………………….….……..PROSECUTION
V E R S U S
ABDIMALIK HUSSEIN………. …………………….…...……ACCUSED
SENTENCE
A. Introduction
1. The Accused, ABDIMALIK HUSSEIN was charged with the offence of Murder Contrary to Section 203 as read with section 204 of the Penal Code . The particulars of the offence were that on the 28 th day of November, 2024 at Garseakey location in Buna Sub-County within Wajir County, he murdered AHMED DUBA .
2. The Accused took plea on 20.12.2024 and pleaded not guilty. The prosecution called 10 witnesses and the accused person was placed on his defence. He gave sworn evidence in defence and sought for time to call one more witness before closing his case, but in the intervening period did enter into a plea bargain agreement with the state. It was also established that prior to this twist of events, the accused persons family and the deceased family had undergone a ADR process overseen by their clan elders under the chairman of Mr Sharmarke Dayo Ali , the Senior chief Buna Location, which agreement was reduced in writing and submitted to this court under his letter dated 6 th July 2026.
3. A duly executed Plea Bargaining Agreement dated 15 th July, 2026 was filed in Court and it indicated that the Accused had agreed to plead guilty to the offence of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code . On 15 th July, 2026, this Court accepted the Plea Agreement after interviewing the Accused and satisfying itself that he executed the Plea Agreement voluntarily.
4. On the same day (15 th July, 2026) , the Accused took plea for the offence of Manslaughter. The charge and every element thereof was read and explained to him in the Borana language which he understood and he pleaded guilty. The Court entered a plea of guilty for the offence of Manslaughter. The Accused accepted the facts as true and the Court convicted him on his own plea of guilty for the lesser offence of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.
B. Pre-Sentence Report:
5. The Report established the accused was a herder before his arrest had no criminal record. The incident had occurred at the heat of the moment, since he found the deceased in his homestead and suspected him of having an affair with his wife, but was remorseful for and acknowledge the pain and loss suffered by the deceased family, whom he had approached and sought forgiveness/ reconciliation through the clan elders.
6. The victim’s family too, acknowledged that indeed it was true that, the two families had reconciled and they had accepted the compensation package as negotiated by the clan elders, which agreement had been reduced into writing vide the chiefs letter dated 6 th July 2026. In conclusion the said report acknowledged that the ADR process was successful and urged the court in the interest of justice to grant the applicant a non-custodial sentence.
C. Accused’s Mitigation:
7. The accused person through his counsel submitted that he was a first time offender, expressed deep remorse for his actions and humbly urged the court to wholly adopt the recommendations of the pre-sentence report dated 21.07.2026, while praying for leniency. He had been in custody for 2 years during which period he had had time to reflect on the incident and now knew better how to manage his anger and emotions. He was also a young man aged 27 years and pleaded to be allowed to reintegrate back with his community and to go build his family. He thus pleaded with the court to discharge him and/or offer him a non-custodial sentence, in light of the successful ADR process undertaken with the deceased family.
8. The state, through the prosecution counsel, also urged the court to adopt the recommendations made in the pre-sentence report and also commended the accused for his gesture to accept to plea bargain.
D. Determination
9. Sentencing serves multiple purposes as enumerated in the Sentencing Policy Guidelines 2023 which outline the objectives of sentencing at paragraph 1.3.1 as follows: -
Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other- in so far as possible, sentences imposed should be geared towards meeting the objectives in totality.
i. Retribution.
ii. Deterrence.
iii. Rehabilitation.
iv. Restorative justice.
v. Community Protection.
vi. Denunciation.
vii. Reconciliation.
viii. Reintegration.
10. The Penal section for the Offence of Manslaughter is contained in Section 205 of the Penal Code which provides: -
Any person who commits the felony of manslaughter is liable to imprisonment for life.
11. I have considered the circumstances of the case, the Pre-Sentence Report and the Accused’s mitigation that he was remorseful and regretted the event that led to the offence. The Accused, his Community and the Probation Officer recommend a non-custodial sentence and the Victim’s family is not opposed to the same following the successful ADR process undertaken by their clan elders and in the presence of both families.
12. This is also in compliance with Article 159(2)(c) of the Constitution in as far as Alternative Dispute Resolution is concerned and provides timely resolution of matters.
13. In the final analysis, it is my finding that this is a suitable case, where a non-custodial sentence can be granted. The accused is therefore sentenced and placed on probation for three (3) years and will be under supervision of the Moyale correctional services/probation & aftercare service during the said period.
14. Right of Appeal 14 days.
15. It is so Ordered.
Judgement delivered, dated and signed this 22 nd day of July, 2026.
........................................
HON. FRANCIS RAYOLA OLEL
JUDGE
………PRESENT IN COURT…………. Appellant
………MR MBURUGU…………………. For O.D.P.P
…………JARSO………………………. Court Assistant
MARSABIT HIGH COURT CRIMINAL CASE NO. E006 OF 2024 – SENTENCEMARSABIT HIGH COURT CRIMINAL CASE NO. E006 OF 2024 – SENTENCE MARSABIT HIGH COURT CRIMINAL CASE NO. E006 OF 2024 – SENTENCEMARSABIT HIGH COURT CRIMINAL CASE NO. E006 OF 2024 – SENTENCE 13131313
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL CASE NO. E006 OF 2024
REPUBLIC…………………………………….….……..PROSECUTION
V E R S U S
ABDIMALIK HUSSEIN………. …………………….…...……ACCUSED
SENTENCE
A. Introduction
1. The Accused, ABDIMALIK HUSSEIN was charged with the offence of Murder Contrary to Section 203 as read with section 204 of the Penal Code . The particulars of the offence were that on the 28 th day of November, 2024 at Garseakey location in Buna Sub-County within Wajir County, he murdered AHMED DUBA .
2. The Accused took plea on 20.12.2024 and pleaded not guilty. The prosecution called 10 witnesses and the accused person was placed on his defence. He gave sworn evidence in defence and sought for time to call one more witness before closing his case, but in the intervening period did enter into a plea bargain agreement with the state. It was also established that prior to this twist of events, the accused persons family and the deceased family had undergone a ADR process overseen by their clan elders under the chairman of Mr Sharmarke Dayo Ali , the Senior chief Buna Location, which agreement was reduced in writing and submitted to this court under his letter dated 6 th July 2026.
3. A duly executed Plea Bargaining Agreement dated 15 th July, 2026 was filed in Court and it indicated that the Accused had agreed to plead guilty to the offence of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code . On 15 th July, 2026, this Court accepted the Plea Agreement after interviewing the Accused and satisfying itself that he executed the Plea Agreement voluntarily.
4. On the same day (15 th July, 2026) , the Accused took plea for the offence of Manslaughter. The charge and every element thereof was read and explained to him in the Borana language which he understood and he pleaded guilty. The Court entered a plea of guilty for the offence of Manslaughter. The Accused accepted the facts as true and the Court convicted him on his own plea of guilty for the lesser offence of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.
B. Pre-Sentence Report:
5. The Report established the accused was a herder before his arrest had no criminal record. The incident had occurred at the heat of the moment, since he found the deceased in his homestead and suspected him of having an affair with his wife, but was remorseful for and acknowledge the pain and loss suffered by the deceased family, whom he had approached and sought forgiveness/ reconciliation through the clan elders.
6. The victim’s family too, acknowledged that indeed it was true that, the two families had reconciled and they had accepted the compensation package as negotiated by the clan elders, which agreement had been reduced into writing vide the chiefs letter dated 6 th July 2026. In conclusion the said report acknowledged that the ADR process was successful and urged the court in the interest of justice to grant the applicant a non-custodial sentence.
C. Accused’s Mitigation:
7. The accused person through his counsel submitted that he was a first time offender, expressed deep remorse for his actions and humbly urged the court to wholly adopt the recommendations of the pre-sentence report dated 21.07.2026, while praying for leniency. He had been in custody for 2 years during which period he had had time to reflect on the incident and now knew better how to manage his anger and emotions. He was also a young man aged 27 years and pleaded to be allowed to reintegrate back with his community and to go build his family. He thus pleaded with the court to discharge him and/or offer him a non-custodial sentence, in light of the successful ADR process undertaken with the deceased family.
8. The state, through the prosecution counsel, also urged the court to adopt the recommendations made in the pre-sentence report and also commended the accused for his gesture to accept to plea bargain.
D. Determination
9. Sentencing serves multiple purposes as enumerated in the Sentencing Policy Guidelines 2023 which outline the objectives of sentencing at paragraph 1.3.1 as follows: -
Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other- in so far as possible, sentences imposed should be geared towards meeting the objectives in totality.
i. Retribution.
ii. Deterrence.
iii. Rehabilitation.
iv. Restorative justice.
v. Community Protection.
vi. Denunciation.
vii. Reconciliation.
viii. Reintegration.
10. The Penal section for the Offence of Manslaughter is contained in Section 205 of the Penal Code which provides: -
Any person who commits the felony of manslaughter is liable to imprisonment for life.
11. I have considered the circumstances of the case, the Pre-Sentence Report and the Accused’s mitigation that he was remorseful and regretted the event that led to the offence. The Accused, his Community and the Probation Officer recommend a non-custodial sentence and the Victim’s family is not opposed to the same following the successful ADR process undertaken by their clan elders and in the presence of both families.
12. This is also in compliance with Article 159(2)(c) of the Constitution in as far as Alternative Dispute Resolution is concerned and provides timely resolution of matters.
13. In the final analysis, it is my finding that this is a suitable case, where a non-custodial sentence can be granted. The accused is therefore sentenced and placed on probation for three (3) years and will be under supervision of the Moyale correctional services/probation & aftercare service during the said period.
14. Right of Appeal 14 days.
15. It is so Ordered.
Judgement delivered, dated and signed this 22 nd day of July, 2026.
........................................
HON. FRANCIS RAYOLA OLEL
JUDGE
………PRESENT IN COURT…………. Appellant
………MR MBURUGU…………………. For O.D.P.P
…………JARSO………………………. Court Assistant
MARSABIT HIGH COURT CRIMINAL CASE NO. E006 OF 2024 – SENTENCEMARSABIT HIGH COURT CRIMINAL CASE NO. E006 OF 2024 – SENTENCE MARSABIT HIGH COURT CRIMINAL CASE NO. E006 OF 2024 – SENTENCEMARSABIT HIGH COURT CRIMINAL CASE NO. E006 OF 2024 – SENTENCE 13131313