'1. The accused person was initially charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars were that on the 14th day of November, 2024 one, DUNCAN OMAE NYAMWEYA at Menyinkwa village in Kiamabundu location in Kisii Central Sub-county within Kisii County, unlawfully caused the death of JULIET KERUBO(Hereinafter referred to as the deceased)
2. When the accused was arraigned in court he pleaded not guilty to the charge .
3. Subsequently, the accused person and the prosecution agreed to enter into a plea bargain agreement pursuant to Section 137A-G of the Criminal Procedure Code, Cap.75(hereinafter referred to as The Act)
4. Thereafter, the charge was subsequently reduced to Manslaughter contrary to Section 202 as read with Section 205 of The Penal Code,. He pleaded guilty pursuant bargain agreement and was convicted on his own plea of guilty.
5. The Supreme Court in the case of Francis Karioki Muruatetu & another vs Republic Petition No.5 of 2015 acts as a guide in matters concerning sentencing. It was stated that.
The following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:
a. Age of the offender
b. Being a first offender;
c. whether the offender pleaded guilty;
d. character and record of the offender;
e. commission of the offence in response to gender-based violence.
f. remorsefulness of the offender;
g. the possibility of reform and social re-adaptation of the offender;
h. any other factor that the Court considers relevant
6. Having in mind that the whole principle behind importance of sentence of criminal law can be compounded to achieve the following goals; deterrence, retribution, community protection, restorative justice, rehabilitation and lastly denunciation.
7. The Honourable Court is convicted to the sentiments of the Court of Appeal in Charo Ngumbao Gugudu v Republic (2011) held as follows;
“sentence imposed on an accused persons must be commensurate in the moral blame worthiness of the offender and that it is thus not proper exercise for the court to fall to look at the facts and circumstances of the case in their entirety before setting for any given sentence”
8. I have considered m the nature of the offence , the youthful age of the offender mitigation , it’s circumstances , the pre-sentence report , the fact that the offender pleaded guilty on a plea bargain agreement and save the precious time of this court . It has emerged that accused and the deceased were both drunk at the material time and that the offender was provoke by finding that deceased was not at home had not cooked for their children of tender years when he arrived home at 9.00pm on the material day. Deceased and accused have young children who still need parental care . The report indicates that he has good community ties and the community is also ready to receive him . The family of deceased have come to terms with her demise and have forgiven the offender as per the report . A non -custodial sentence would be appropriate in this case to re-unite the offender with his young children and also to enable him benefit from counselling with a view to rehabilitate him .
10. I proceed to sentence the offender to 3 years probation. 14 days Right of Appeal .
T.A ODERA
JUDGE
6.10.25
Delivered Virtually in the presence of the offender Mr Magara for offender , Mr Koima for the state and CA Kipchirchir .
.
'
2. When the accused was arraigned in court he pleaded not guilty to the charge .
3. Subsequently, the accused person and the prosecution agreed to enter into a plea bargain agreement pursuant to Section 137A-G of the Criminal Procedure Code, Cap.75(hereinafter referred to as The Act)
4. Thereafter, the charge was subsequently reduced to Manslaughter contrary to Section 202 as read with Section 205 of The Penal Code,. He pleaded guilty pursuant bargain agreement and was convicted on his own plea of guilty.
5. The Supreme Court in the case of Francis Karioki Muruatetu & another vs Republic Petition No.5 of 2015 acts as a guide in matters concerning sentencing. It was stated that.
The following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:
a. Age of the offender
b. Being a first offender;
c. whether the offender pleaded guilty;
d. character and record of the offender;
e. commission of the offence in response to gender-based violence.
f. remorsefulness of the offender;
g. the possibility of reform and social re-adaptation of the offender;
h. any other factor that the Court considers relevant
6. Having in mind that the whole principle behind importance of sentence of criminal law can be compounded to achieve the following goals; deterrence, retribution, community protection, restorative justice, rehabilitation and lastly denunciation.
7. The Honourable Court is convicted to the sentiments of the Court of Appeal in Charo Ngumbao Gugudu v Republic (2011) held as follows;
“sentence imposed on an accused persons must be commensurate in the moral blame worthiness of the offender and that it is thus not proper exercise for the court to fall to look at the facts and circumstances of the case in their entirety before setting for any given sentence”
8. I have considered m the nature of the offence , the youthful age of the offender mitigation , it’s circumstances , the pre-sentence report , the fact that the offender pleaded guilty on a plea bargain agreement and save the precious time of this court . It has emerged that accused and the deceased were both drunk at the material time and that the offender was provoke by finding that deceased was not at home had not cooked for their children of tender years when he arrived home at 9.00pm on the material day. Deceased and accused have young children who still need parental care . The report indicates that he has good community ties and the community is also ready to receive him . The family of deceased have come to terms with her demise and have forgiven the offender as per the report . A non -custodial sentence would be appropriate in this case to re-unite the offender with his young children and also to enable him benefit from counselling with a view to rehabilitate him .
10. I proceed to sentence the offender to 3 years probation. 14 days Right of Appeal .
T.A ODERA
JUDGE
6.10.25
Delivered Virtually in the presence of the offender Mr Magara for offender , Mr Koima for the state and CA Kipchirchir .
.
'