1. Roy Ochieng Omondi was convicted of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
2. The particulars of the offence are that on the 13th day of September 2019, at Adingo Debe village, Uriri Sub-County of Migori County, unlawfully murdered Collince Otieno Ooro.
3. The appellant was sentenced to serve forty-five years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) The trial magistrate erred by relying on the evidence that was full of contradictions.
b) The court erred by admitting evidence that had no nexus to the appellant and shifted the burden of proof from the prosecution.
c) That the court erred by finding that the charge had been proved.
d) That the court erred by imposing an irregular, punitive and harsh sentence.
4. The state opposed the appeal. It was contended that it lacked merit.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. A disagreement over a mobile phone handset led to the unfortunate death of the deceased. The phone was given to Lilian Atieno (PW2). She went away with the phone to watch some content. The deceased borrowed the phone from her and promised to return it. He, however, did not. The issue became protracted, and the matter was reported to the chief.
7. Apparently, the deceased sold the phone. In the evidence of Stephen Ouko Ojwang (PW1) on the 13th day of September 2019, the deceased sold a phone and gave him Kshs.10/=.
8. Stephen Ouko Ojwang (PW1) was the sole eyewitness to the incident. He gave the court a clear account of the events leading up to the death. He testified that the accused and the deceased went to the village elder to discuss a phone issue. The appellant asked for his phone, and the deceased entered the house, returning with two machetes in hand. He brandished them at the appellant. The appellant appeared to run away but then drew a machete from his waist, struck the deceased on the head, and fled.
9. Roy Ochieng Omondi, the appellant, pleaded an alibi. He contended that he worked in Kisumu County and would return home every two years. When an accused raises an alibi defence, they do not assume any burden to prove that it is the truth. This was stated in the case of Kiarie vs Republic [1984] KLR, where the Court of Appeal held:
An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.
10. In the instant case, the alibi defence of the appellant was displaced by the evidence of PW1 and PW2.
11. The prosecution demonstrated, to the necessary standards, that the appellant unlawfully caused the death of the deceased.
12. The appellant argued that the trial court imposed an irregular, punitive and harsh sentence. An appellate court would interfere with the trial court's sentence only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court’s order. These circumstances were well illustrated in the case of Nillson vs Republic [1970] E.A. 599, as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
13. Section 205 of the Penal Code provides as follows:
Any person who commits the felony of manslaughter is liable to imprisonment for life.
14. The circumstances of the offence indicated that the deceased was the aggressor. He took two machetes and threatened the appellant, who was simply trying to pursue the issue of his phone. Given this context, the original sentence was too harsh. I have set aside the trial magistrate's sentence and replaced it with a seven-year term of imprisonment, effective from the date the trial court sentenced him. This sentence will also consider the nine months he already spent in custody. As a result, his appeal is successful to that extent.
Delivered and signed at Migori, this 23rd day of February 2026
2. The particulars of the offence are that on the 13th day of September 2019, at Adingo Debe village, Uriri Sub-County of Migori County, unlawfully murdered Collince Otieno Ooro.
3. The appellant was sentenced to serve forty-five years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) The trial magistrate erred by relying on the evidence that was full of contradictions.
b) The court erred by admitting evidence that had no nexus to the appellant and shifted the burden of proof from the prosecution.
c) That the court erred by finding that the charge had been proved.
d) That the court erred by imposing an irregular, punitive and harsh sentence.
4. The state opposed the appeal. It was contended that it lacked merit.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. A disagreement over a mobile phone handset led to the unfortunate death of the deceased. The phone was given to Lilian Atieno (PW2). She went away with the phone to watch some content. The deceased borrowed the phone from her and promised to return it. He, however, did not. The issue became protracted, and the matter was reported to the chief.
7. Apparently, the deceased sold the phone. In the evidence of Stephen Ouko Ojwang (PW1) on the 13th day of September 2019, the deceased sold a phone and gave him Kshs.10/=.
8. Stephen Ouko Ojwang (PW1) was the sole eyewitness to the incident. He gave the court a clear account of the events leading up to the death. He testified that the accused and the deceased went to the village elder to discuss a phone issue. The appellant asked for his phone, and the deceased entered the house, returning with two machetes in hand. He brandished them at the appellant. The appellant appeared to run away but then drew a machete from his waist, struck the deceased on the head, and fled.
9. Roy Ochieng Omondi, the appellant, pleaded an alibi. He contended that he worked in Kisumu County and would return home every two years. When an accused raises an alibi defence, they do not assume any burden to prove that it is the truth. This was stated in the case of Kiarie vs Republic [1984] KLR, where the Court of Appeal held:
An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.
10. In the instant case, the alibi defence of the appellant was displaced by the evidence of PW1 and PW2.
11. The prosecution demonstrated, to the necessary standards, that the appellant unlawfully caused the death of the deceased.
12. The appellant argued that the trial court imposed an irregular, punitive and harsh sentence. An appellate court would interfere with the trial court's sentence only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court’s order. These circumstances were well illustrated in the case of Nillson vs Republic [1970] E.A. 599, as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
13. Section 205 of the Penal Code provides as follows:
Any person who commits the felony of manslaughter is liable to imprisonment for life.
14. The circumstances of the offence indicated that the deceased was the aggressor. He took two machetes and threatened the appellant, who was simply trying to pursue the issue of his phone. Given this context, the original sentence was too harsh. I have set aside the trial magistrate's sentence and replaced it with a seven-year term of imprisonment, effective from the date the trial court sentenced him. This sentence will also consider the nine months he already spent in custody. As a result, his appeal is successful to that extent.
Delivered and signed at Migori, this 23rd day of February 2026