1. The accused herein Francis Ooko Odawa has been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. However, following a plea bargain agreement dated 1 st December 2025, the charge of murder was substituted with a charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The particulars are that on 28 th day of October 2024 at Got Regea Sub Location in North Gem Location, Yala Sub County within Siaya County unlawfully killed Emmaculate Atieno. The accused pleaded guilty to the charge and facts and was convicted accordingly.
2. The sentencing hearing proceeded on 15/12/2025. Mr. Odhiambo for the defence submitted inter alia; that the accused is a first offender and has been in custody since 28/10/2024; that he took responsibility over the incident; that the accused and the deceased had gone for a drink and that he later rushed to the chief to report; that he together with the deceased’s family are cordially in good terms and that the family of accused contributed in the funeral exercise; that the deceased’s family has expressed itself vide the pre-bail and pre- sentence report and that they support a non-custodial sentence; that the presentence report is favourable for a non-custodial sentence and that the accused prays for a non-custodial sentence.
3. Mr. Soita for the prosecution submitted inter alia; that he had perused the pre-sentence report and noted the circumstances of the offence; that the prosecution did enter into a plea bargain in the matter; that they are not opposed to the accused being granted another chance in life.
4. This court called for a pre-sentence report by the Probation department. The same is dated 11/12/2025. The report indicates inter alia; the offender is very remorseful at the turn of events of the fateful day and asks for forgiveness from the victim’s family; that the offender comes from a family that upholds good moral standing and that it was unfortunate for the incident that arose; that immediate family members are receptive and ready to help the offender re-integrate and resettle in the event he is accorded an opportunity for a non-custodial sentence; that the offender engages in menial jobs to sustain his basic needs; that he is married and has three children although he separated with his wife who left the children under the care of their grandmother; that the offender engages in farming to support his family and his aging mother; that he was also a social consumer of alcohol before his arrest; that the circumstance of the offence is that he went to a drinking spree in the company of the deceased and on their return home, the deceased was overwhelmed by the busaa she had consumed; that the deceased kept on staggering and falling along the way; that the offender who was also drank kept on urging her to persevere as they were almost home; that he plucked a stick with which he used to hit her on her back in order to compel her to keep walking; that on reaching his house, the deceased sat on a chair as he went out to look for water from the kitchen so that she could wash her legs before retiring to bed; that on his return with water, the deceased was already dead; that he gathered courage and contacted the local administration at about midnight of the fateful day; that the administrator summoned him immediately and took him to the police who placed him in custody; that the victim’s family expressed satisfaction with the support the offender’s family accorded them during the burial of the deceased; that they realized the humbleness of the offender’s family and resolved to shelve the idea of compensation of Ksh200,000/= and that the deceased’s mother has no objection to the release of the offender on a non-custodial rehabilitation as he is the one taking care of his young children and his aged and ailing mother; that the community members and local administration are convinced that the time the offender has been in custody has helped him to reflect on the offence he committed that was largely influenced by the consumption of alcohol and that they believe that the offender will come out a changed person who can be valuable to his peers within the community.
5. I have given due consideration to the mitigation submissions of learned counsels and the pre-sentence report. Under Section 205 of the Penal Code, the maximum sentence for manslaughter is life imprisonment. However, the maximum sentence is usually reserved for the worst form of offenders. Looking at the circumstances of the case, iam of the view that the accused does not merit a sentence of life imprisonment. It is noted that the offence was committed as a result of the accused hitting the deceased with a piece of wood for failing to keep pace as the deceased was drunk and unable to walk. Even though the decased was drunk and unable to walk, the same did not warrant the accused to flog the deceased like an animal. Further, even if the accused was also inebriated, he had used excessive force against the deceased which led to her death. It is trite that all homicides are unlawful unless authorized by law. Had the accused been patient with the deceased, she would be alive today.
6. It is noted that the circumstances leading to the death of the deceased are tragic. The body of the deceased was found lying dead in the house of the accused herein and that preliminary investigation revealed that both the deceased and accused had gone for a drinking spree and while on their way back home, a disagreement arose and that a fighting broke out. The deceased’s body had physical injuries. The pathologist, Dr. Ochieng Victor noted inter alia; that the deceased suffered severe body bruises more on the left side of the body and major bruises noted around the hip region measuring 3 cm by 4 cm; bumpy skin noted on both thighs with generated edema upto the knee bilaterally; elbow joints dislocated bilaterally; left eyelids swollen and dried; ecchymosis noted on the foot soles of the feet bilaterally around the toe bars – hyperemic upto the tip of the toes; bruises noted generalized on the face (cheeks, forehead and chin); waste circumferential mark characterized with bruises noted with also dark pigmentation of the skin around it. He formed the opinion that the cause of death was brain hypoxic injury secondary to intracranial hemorrhage secondary to brain vessels rapture secondary to blunt trauma to the temporal side. The deceased did not deserve to die in the manner that she did and that the accused could as well have left her on the road and who could find her way home once she became sober and strong to walk.
7. As regards the sentence to be imposed, the Court of Appeal in the case of Charo Ngumbao Gugudu Vs. R [2011] eKLR held as follows:
“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani Vs. R [1990] KLR”
8. According to the Judiciary Sentencing Policy Guidelines (2023), sentencing of offenders should take into account the following objectives:
a) Retribution - To punish the offender for their criminal conduct in a just manner.
b) Deterrence - To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.
c) Rehabilitation - To enable the offender to reform from his/her criminal disposition and become a law-abiding person.
d) Restorative justice - To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.
e) Community protection - To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.
f) Denunciation - To clearly communicate the community’s condemnation of the criminal conduct.
g) Reconciliation - To mend the relationship between the offender, the victim and the community.
h) Reintegration - To facilitate the re-entry of the offender into the society.
9.Looking at the circumstances of the offence as well as the pre-sentence reports and the mitigation of the accused herein, it is noted that the accused did not intend to kill the deceased who was his lover and that he presented himself to the authorities upon noticing that the deceased had passed. The accused has also pleaded guilty to the offence and thus he has saved the court the precious scarce judicial time. It is also noted that the accused is remorseful over the incident and that the period already spent in custody has somewhat atoned for his sins and that he has had time to reflect on the crime that he committed. It is also noted that the family of the deceased have expressed no objection to the accused being given a chance on a non-custodial sentence and likewise the local administration are of the same view. Iam of the view that a non-custodial sentence is merited in the circumstances.
10. In the result, i order the accused herein Francis Ooko Odawa to serve under probation for a period of three (3) years under the close supervision of the relevant probation officer. In the event of non-adherence to the probationary terms, the probationary order shall be cancelled and that he shall be ordered to serve the whole period under custodial sentence regardless of any period served under probation.
Orders accordingly.
Dated and delivered at Siaya this 14 th day of January 2026.
D. KEMEI
JUDGE
In the presence of:
Francis Ooko Odawa……………..Accused.
Odhiambo……………….………for Accused.
Soita…..…………..……….….for Prosecution.
Maureen/Kimaiyo………………Court Assistant.
SIAYA HCCRC NO. E047 OF 2024 RULING 8 | Page
2. The sentencing hearing proceeded on 15/12/2025. Mr. Odhiambo for the defence submitted inter alia; that the accused is a first offender and has been in custody since 28/10/2024; that he took responsibility over the incident; that the accused and the deceased had gone for a drink and that he later rushed to the chief to report; that he together with the deceased’s family are cordially in good terms and that the family of accused contributed in the funeral exercise; that the deceased’s family has expressed itself vide the pre-bail and pre- sentence report and that they support a non-custodial sentence; that the presentence report is favourable for a non-custodial sentence and that the accused prays for a non-custodial sentence.
3. Mr. Soita for the prosecution submitted inter alia; that he had perused the pre-sentence report and noted the circumstances of the offence; that the prosecution did enter into a plea bargain in the matter; that they are not opposed to the accused being granted another chance in life.
4. This court called for a pre-sentence report by the Probation department. The same is dated 11/12/2025. The report indicates inter alia; the offender is very remorseful at the turn of events of the fateful day and asks for forgiveness from the victim’s family; that the offender comes from a family that upholds good moral standing and that it was unfortunate for the incident that arose; that immediate family members are receptive and ready to help the offender re-integrate and resettle in the event he is accorded an opportunity for a non-custodial sentence; that the offender engages in menial jobs to sustain his basic needs; that he is married and has three children although he separated with his wife who left the children under the care of their grandmother; that the offender engages in farming to support his family and his aging mother; that he was also a social consumer of alcohol before his arrest; that the circumstance of the offence is that he went to a drinking spree in the company of the deceased and on their return home, the deceased was overwhelmed by the busaa she had consumed; that the deceased kept on staggering and falling along the way; that the offender who was also drank kept on urging her to persevere as they were almost home; that he plucked a stick with which he used to hit her on her back in order to compel her to keep walking; that on reaching his house, the deceased sat on a chair as he went out to look for water from the kitchen so that she could wash her legs before retiring to bed; that on his return with water, the deceased was already dead; that he gathered courage and contacted the local administration at about midnight of the fateful day; that the administrator summoned him immediately and took him to the police who placed him in custody; that the victim’s family expressed satisfaction with the support the offender’s family accorded them during the burial of the deceased; that they realized the humbleness of the offender’s family and resolved to shelve the idea of compensation of Ksh200,000/= and that the deceased’s mother has no objection to the release of the offender on a non-custodial rehabilitation as he is the one taking care of his young children and his aged and ailing mother; that the community members and local administration are convinced that the time the offender has been in custody has helped him to reflect on the offence he committed that was largely influenced by the consumption of alcohol and that they believe that the offender will come out a changed person who can be valuable to his peers within the community.
5. I have given due consideration to the mitigation submissions of learned counsels and the pre-sentence report. Under Section 205 of the Penal Code, the maximum sentence for manslaughter is life imprisonment. However, the maximum sentence is usually reserved for the worst form of offenders. Looking at the circumstances of the case, iam of the view that the accused does not merit a sentence of life imprisonment. It is noted that the offence was committed as a result of the accused hitting the deceased with a piece of wood for failing to keep pace as the deceased was drunk and unable to walk. Even though the decased was drunk and unable to walk, the same did not warrant the accused to flog the deceased like an animal. Further, even if the accused was also inebriated, he had used excessive force against the deceased which led to her death. It is trite that all homicides are unlawful unless authorized by law. Had the accused been patient with the deceased, she would be alive today.
6. It is noted that the circumstances leading to the death of the deceased are tragic. The body of the deceased was found lying dead in the house of the accused herein and that preliminary investigation revealed that both the deceased and accused had gone for a drinking spree and while on their way back home, a disagreement arose and that a fighting broke out. The deceased’s body had physical injuries. The pathologist, Dr. Ochieng Victor noted inter alia; that the deceased suffered severe body bruises more on the left side of the body and major bruises noted around the hip region measuring 3 cm by 4 cm; bumpy skin noted on both thighs with generated edema upto the knee bilaterally; elbow joints dislocated bilaterally; left eyelids swollen and dried; ecchymosis noted on the foot soles of the feet bilaterally around the toe bars – hyperemic upto the tip of the toes; bruises noted generalized on the face (cheeks, forehead and chin); waste circumferential mark characterized with bruises noted with also dark pigmentation of the skin around it. He formed the opinion that the cause of death was brain hypoxic injury secondary to intracranial hemorrhage secondary to brain vessels rapture secondary to blunt trauma to the temporal side. The deceased did not deserve to die in the manner that she did and that the accused could as well have left her on the road and who could find her way home once she became sober and strong to walk.
7. As regards the sentence to be imposed, the Court of Appeal in the case of Charo Ngumbao Gugudu Vs. R [2011] eKLR held as follows:
“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani Vs. R [1990] KLR”
8. According to the Judiciary Sentencing Policy Guidelines (2023), sentencing of offenders should take into account the following objectives:
a) Retribution - To punish the offender for their criminal conduct in a just manner.
b) Deterrence - To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.
c) Rehabilitation - To enable the offender to reform from his/her criminal disposition and become a law-abiding person.
d) Restorative justice - To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.
e) Community protection - To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.
f) Denunciation - To clearly communicate the community’s condemnation of the criminal conduct.
g) Reconciliation - To mend the relationship between the offender, the victim and the community.
h) Reintegration - To facilitate the re-entry of the offender into the society.
9.Looking at the circumstances of the offence as well as the pre-sentence reports and the mitigation of the accused herein, it is noted that the accused did not intend to kill the deceased who was his lover and that he presented himself to the authorities upon noticing that the deceased had passed. The accused has also pleaded guilty to the offence and thus he has saved the court the precious scarce judicial time. It is also noted that the accused is remorseful over the incident and that the period already spent in custody has somewhat atoned for his sins and that he has had time to reflect on the crime that he committed. It is also noted that the family of the deceased have expressed no objection to the accused being given a chance on a non-custodial sentence and likewise the local administration are of the same view. Iam of the view that a non-custodial sentence is merited in the circumstances.
10. In the result, i order the accused herein Francis Ooko Odawa to serve under probation for a period of three (3) years under the close supervision of the relevant probation officer. In the event of non-adherence to the probationary terms, the probationary order shall be cancelled and that he shall be ordered to serve the whole period under custodial sentence regardless of any period served under probation.
Orders accordingly.
Dated and delivered at Siaya this 14 th day of January 2026.
D. KEMEI
JUDGE
In the presence of:
Francis Ooko Odawa……………..Accused.
Odhiambo……………….………for Accused.
Soita…..…………..……….….for Prosecution.
Maureen/Kimaiyo………………Court Assistant.
SIAYA HCCRC NO. E047 OF 2024 RULING 8 | Page