SENTENCE RULING
1. Alex Kyalo Masavu is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that on 3/6/2019 at Kyale Village, Kisekini Sublocation Kilungu Subcounty within Makueni County he murdered Onesmus Kiendi Kivuva.
2. Plea was taken on 3/7/2019 before Hon. J. Ong’udi and accused pleaded not guilty.
3. The matter proceeded for trial and on 30/4/2025 the offender was found guilty and convicted of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
4. I sought a pre-sentence report from Probation Aftercare Service. I note with dismay that the Probation Aftercare Service Officer was not aware that the charge had been substituted – from murder to manslaughter because the report, on page 1 he indicates that the charge is murder contrary to section 203 as read with section 204 of the Penal Code together with the attending particulars.
5. Section 4(8) of the Probation of Offenders Act Cap 64 provides from a pre-sentence report –
6. Section 4(8) of the Act States that –
“A pre-sentence report shall include a recommendation as to the suitable period of supervision; rehabilitation programmes and any other measures necessary to reduce the risk of re-offending”
7. In this case the report simply states ‘I leave it to court to rule on its own wisdom’.
8. My view is that it is not in order for an officer to say that – it is evident that the reason for this is the sentiments expressed by the parties yet these should not be the sole basis for the determination of whether or not an offender is suitable for non-custodial sentence/not suitable for non-custodial sentence.
9. Section 2.5.2. of the Sentencing Policy Guidelines 2023 at (pg 17) there are eight considerations of the information to be availed in a pre-sentence report. While these are set out i.e. age, character, antecedents home surroundings, health /mental health of the offender, nature of the offence, victim impact statement – it is important for the Probation &Aftercare Service Officer to apply his mind to the information gathered and draw an analysis as why the offender is or is not suitable for non-custodial sentence and the way forward should the court take the recommendation.
10. One of the requirements for a non-custodial sentence is the willingness of the offender to serve. In the case herein the offender still denies committing the offence and would definitely not benefit from a probation supervision order whose purpose is to assist a person who accepts their shortcoming and is willing to change with the assistance of the Probation Aftercare Service Officer and other relevant stake holders.
11. The offender herein continues to deny the committing of the offence and it would be difficult for a PACs officer whose supervision requires the cooperation of an offender to achieve the required outcomes with such an offender.
12. In the circumstances I must consider a custodial sentence.
13. The offender appeared in court on 20/6/2019 for the 1st time. He was granted bond on 10/7/2019 of Kshs. 200,000 with surety of similar amount.
14. A Cash bail of Kshs. 50,000 was deposited on 26/9/2023 and he was released on bond on 4/10/2023. He remained out on bond until 30/4/2025 when the bond was suspended upon conviction.
15. Working out the period spent in in custody I found that the actual time spent was 4 years 6 months - hence any sentence must take into consideration that period. See Court of Appeal Bethwel Wilson Kibor V R [2009] KECA 143 KLR (9 years), Bernard Kimani Gacheru V R [2002] KECA 94 KLR (9 years). In both cases the Period of 9 years spent in custody prior to conviction was taken into consideration as part of the sentence.
16. I have considered the mitigation by the accused person’s counsel Mr. Kioko who stated that he is remorseful for the occurrences that led to death of the deceased; he was married, the wife left. The court was urged to consider the balance between the rights of the accused and those of the deceased.
17. I have considered the circumstance of the offence, the mitigation by counsel and the general trends in sentencing in similar matters.
18. The offender is sentenced to 9 years’ imprisonment less the 4 years 6 months he spent in remand custody before conviction.
Dated, signed and delivered this 16th July 2025
Mumbua T Matheka
Judge
CA Chrispol
Accused present
Mr Hassan holding brief for Mr. Kioko for the accused
Mr Kazungu for the state
1. Alex Kyalo Masavu is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that on 3/6/2019 at Kyale Village, Kisekini Sublocation Kilungu Subcounty within Makueni County he murdered Onesmus Kiendi Kivuva.
2. Plea was taken on 3/7/2019 before Hon. J. Ong’udi and accused pleaded not guilty.
3. The matter proceeded for trial and on 30/4/2025 the offender was found guilty and convicted of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
4. I sought a pre-sentence report from Probation Aftercare Service. I note with dismay that the Probation Aftercare Service Officer was not aware that the charge had been substituted – from murder to manslaughter because the report, on page 1 he indicates that the charge is murder contrary to section 203 as read with section 204 of the Penal Code together with the attending particulars.
5. Section 4(8) of the Probation of Offenders Act Cap 64 provides from a pre-sentence report –
6. Section 4(8) of the Act States that –
“A pre-sentence report shall include a recommendation as to the suitable period of supervision; rehabilitation programmes and any other measures necessary to reduce the risk of re-offending”
7. In this case the report simply states ‘I leave it to court to rule on its own wisdom’.
8. My view is that it is not in order for an officer to say that – it is evident that the reason for this is the sentiments expressed by the parties yet these should not be the sole basis for the determination of whether or not an offender is suitable for non-custodial sentence/not suitable for non-custodial sentence.
9. Section 2.5.2. of the Sentencing Policy Guidelines 2023 at (pg 17) there are eight considerations of the information to be availed in a pre-sentence report. While these are set out i.e. age, character, antecedents home surroundings, health /mental health of the offender, nature of the offence, victim impact statement – it is important for the Probation &Aftercare Service Officer to apply his mind to the information gathered and draw an analysis as why the offender is or is not suitable for non-custodial sentence and the way forward should the court take the recommendation.
10. One of the requirements for a non-custodial sentence is the willingness of the offender to serve. In the case herein the offender still denies committing the offence and would definitely not benefit from a probation supervision order whose purpose is to assist a person who accepts their shortcoming and is willing to change with the assistance of the Probation Aftercare Service Officer and other relevant stake holders.
11. The offender herein continues to deny the committing of the offence and it would be difficult for a PACs officer whose supervision requires the cooperation of an offender to achieve the required outcomes with such an offender.
12. In the circumstances I must consider a custodial sentence.
13. The offender appeared in court on 20/6/2019 for the 1st time. He was granted bond on 10/7/2019 of Kshs. 200,000 with surety of similar amount.
14. A Cash bail of Kshs. 50,000 was deposited on 26/9/2023 and he was released on bond on 4/10/2023. He remained out on bond until 30/4/2025 when the bond was suspended upon conviction.
15. Working out the period spent in in custody I found that the actual time spent was 4 years 6 months - hence any sentence must take into consideration that period. See Court of Appeal Bethwel Wilson Kibor V R [2009] KECA 143 KLR (9 years), Bernard Kimani Gacheru V R [2002] KECA 94 KLR (9 years). In both cases the Period of 9 years spent in custody prior to conviction was taken into consideration as part of the sentence.
16. I have considered the mitigation by the accused person’s counsel Mr. Kioko who stated that he is remorseful for the occurrences that led to death of the deceased; he was married, the wife left. The court was urged to consider the balance between the rights of the accused and those of the deceased.
17. I have considered the circumstance of the offence, the mitigation by counsel and the general trends in sentencing in similar matters.
18. The offender is sentenced to 9 years’ imprisonment less the 4 years 6 months he spent in remand custody before conviction.
Dated, signed and delivered this 16th July 2025
Mumbua T Matheka
Judge
CA Chrispol
Accused present
Mr Hassan holding brief for Mr. Kioko for the accused
Mr Kazungu for the state