[1] Evans Odhiambo Nyasiko was the accused person in this matter. For purposes of the re-sentencing, I will henceforth refer to him as the accused. He was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Chapter 63 of the Laws of Kenya. It was alleged that on the 2 nd day of August 2014 at Nyamagara Village in Kobita Sublocation in Pala Division in Homa Bay County in the Republic of Kenya, he murdered John Odhiambo Okiri . Although he denied the charge, he was found guilty after trial and was convicted as charged. His defence was conducted by Ms. Nyarige , Advocate. The trial judge (Hon. H. A. Omondi, J., as she then was) thereafter, on the 28 th March 2017, sentenced him to death on the basis that the offence of murder attracts a mandatory death sentence.
[2] Being aggrieved by the decision of the Court, the accused filed an appeal before the Court of Appeal, being Kisumu Criminal Appeal No. 145 of 2017: Evans Odhiambo Nyasiko v Republic . The Court of Appeal rendered is Judgment on 16 th February 2024 and dismissed the appeal against conviction. On the aspect of the sentence, the Court of Appeal held:
“33. …although the appellant mitigated and pleaded for leniency, the learned judge imposed a death sentence saying that the death sentence was mandatory upon conviction. We appreciate that the sentence was passed before the Supreme Court decision in the famous case of Francis Muruatetu & another –vs- Republic [2017] eKLR.
34. Following the above decision, death is not the only prescribed sentence following a conviction for murder. The trial court has discretion to consider the mitigation tendered by an accused person and all circumstances of the case, and also consider the sentencing guidelines and mete out the appropriate sentence. The appellant seeks to have the matter remitted back to the High Court for re-sentencing, and it is indeed his right to have his sentence reconsidered by the trial court. We accede to his request. Accordingly, the appeal on sentence is hereby allowed. The death sentence meted out on the appellant is hereby set aside.
35. The matter is remitted to the High Court sitting in Homa Bay for a re-sentencing hearing…”
[3] Upon receipt of the file along with a copy of the Judgment of the Court of Appeal, this Court called for a Pre-Sentence Report; and the same was submitted herein on 13 th January 2026. The Re-sentencing hearing was thereafter held on 22 nd January 2026. The Prosecution Counsel urged the Court to find that the offence was pre-meditated and submitted that the most appropriate sentence in the circumstances is death. Counsel referred the Court to page 6 of the Pre-Sentence Report as to the impact of the crime on the family of the deceased and noted that the ground is still hostile to the release of the accused.
[4] On behalf of the accused, his Counsel relied on Article 50(2)(q) of the Constitution of Kenya and the case of Muruatetu & others (supra) as well as the Judiciary Sentencing Policy Guidelines, 2023 . She reiterated that the accused is a first offender and added that he is remorseful. Counsel urged the Court to note that the incident occurred in 2017 and therefore the accused had served 8 years in prison, during which period he has undergone rehabilitation. Counsel further stated that the accused has a family that has suffered greatly during his incarceration. She therefore urged the Court to consider re-integration of the accused, presumably by way of a non-custodial sentence. In the alternative counsel submitted that such suitable sentence be imposed other than death. She likewise proposed that the period spent in custody be taken into account. While appreciating that sentence is in the discretion of the Court, counsel proposed a term of imprisonment of not more than 20 years.
[5] The objectives of sentencing are manifold. At page 15 of the Judiciary Sentencing Guidelines , some of these objectives are set out as hereunder:
[a] Retribution : to punish the offender for his/her criminal conduct in a just manner.
[b] Deterrence : to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
[c] Rehabilitation : to enable the offender 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.
[e] Community protection : to protect the community by incapacitating the offender.
[f] Denunciation : to communicate the community’s condemnation of the criminal conduct.
[6] Hence, although Section 204 of the Penal Code stipulates that a person who commits the offence of murder shall be liable to death, it is not in every murder case that the penalty of death would be warranted. In Spence v The Queen; Hughes v the Queen (Spence & Hughes) (unreported, 2 April 2001) the Privy Council expressed the view that:
“In order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. There should be a requirement for individualized sentencing in implementing the death penalty.”
[7] I n its Directions in respect of the Muruatetu case the Supreme Court had occasion to reiterate the factors to take into account for purposes of sentencing in a murder case. Thus, at paragraph 18(vii) of the Directions dated 6 th July 2021 , the Supreme Court listed the following considerations:
[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 .
[8] Even where the Court is convinced that custodial sentence is the most appropriate, it is stated, at Paragraph 5.2.2 of the Judiciary Sentencing Guidelines, 2023 as follows in respect of the offence of murder:
5.2.2 The harm caused by such an offence is immeasurable. The sentence is not a measure of the value placed on the life of the victim. Therefore, the assessment of aggravating and mitigating features relating to the offence focusses on culpability. However, the victims’ family may wish to make a statement to the court about the impact of the offence.
[9] There is no doubt therefore that the accused was convicted of a heinous crime that attracts the death penalty as the maximum possible sentence. His conviction was upheld by the Court of Appeal. However, it is also the case that he was a first offender. He was afforded the opportunity to address the Court in mitigation through his counsel, Ms. Nyarige . It is therefore pertinent that he has been in custody for about 8 years now; and that he has a family that has been deprived of a bread-winner. Counsel also indicated that the accused is remorseful and has undergone rehabilitation.
[10] The Court called for a Pre-Sentence Report as well as a Victim Impact Statement. The Pre-Sentence Report shows that, as between the families of the accused and the deceased, hostility prevails as no reconciliation has been initiated or accomplished. The report further shows that the situation is very volatile as each side is on the alert for any further confrontation. From the local administration, it emerged that, given the level of animosity between the two families, they were hesitant to recommend non-custodial sentence. On the basis of their inquiries, observations and findings, the County Director of Probation and Aftercare Services formed the opinion that the accused is not suitable for non-custodial sentence.
[11] Thus, having taken all the foregoing factors into account, it is manifest that non-custodial sentence is not appropriate in the circumstances. In this case, I have taken into account the deliberate and premeditated manner in which the offence was executed by the accused. I consider a custodial sentence of 30 years to be appropriate in the circumstances.
[12] Accordingly, it is hereby ordered that, in lieu of the death penalty earlier imposed on him, the accused be and hereby re-sentenced to 30 years’ imprisonment. I have also noted that the accused has been in custody since the date of his arraignment in court on 5 th August 2014. It could well be that he has been in custody from the date of his arrest prior to the 5 th August 2014. Since the exact date of his arrest is not discernible from the record, it is hereby ordered that the imprisonment term of 30 years be reckoned from the 5 th August 2014 when the accused was first arraigned before court.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 28 TH DAY OF JANUARY 2026
5 | Page HCCRA NO 35 OF 2014 RE-SENTENSING
[2] Being aggrieved by the decision of the Court, the accused filed an appeal before the Court of Appeal, being Kisumu Criminal Appeal No. 145 of 2017: Evans Odhiambo Nyasiko v Republic . The Court of Appeal rendered is Judgment on 16 th February 2024 and dismissed the appeal against conviction. On the aspect of the sentence, the Court of Appeal held:
“33. …although the appellant mitigated and pleaded for leniency, the learned judge imposed a death sentence saying that the death sentence was mandatory upon conviction. We appreciate that the sentence was passed before the Supreme Court decision in the famous case of Francis Muruatetu & another –vs- Republic [2017] eKLR.
34. Following the above decision, death is not the only prescribed sentence following a conviction for murder. The trial court has discretion to consider the mitigation tendered by an accused person and all circumstances of the case, and also consider the sentencing guidelines and mete out the appropriate sentence. The appellant seeks to have the matter remitted back to the High Court for re-sentencing, and it is indeed his right to have his sentence reconsidered by the trial court. We accede to his request. Accordingly, the appeal on sentence is hereby allowed. The death sentence meted out on the appellant is hereby set aside.
35. The matter is remitted to the High Court sitting in Homa Bay for a re-sentencing hearing…”
[3] Upon receipt of the file along with a copy of the Judgment of the Court of Appeal, this Court called for a Pre-Sentence Report; and the same was submitted herein on 13 th January 2026. The Re-sentencing hearing was thereafter held on 22 nd January 2026. The Prosecution Counsel urged the Court to find that the offence was pre-meditated and submitted that the most appropriate sentence in the circumstances is death. Counsel referred the Court to page 6 of the Pre-Sentence Report as to the impact of the crime on the family of the deceased and noted that the ground is still hostile to the release of the accused.
[4] On behalf of the accused, his Counsel relied on Article 50(2)(q) of the Constitution of Kenya and the case of Muruatetu & others (supra) as well as the Judiciary Sentencing Policy Guidelines, 2023 . She reiterated that the accused is a first offender and added that he is remorseful. Counsel urged the Court to note that the incident occurred in 2017 and therefore the accused had served 8 years in prison, during which period he has undergone rehabilitation. Counsel further stated that the accused has a family that has suffered greatly during his incarceration. She therefore urged the Court to consider re-integration of the accused, presumably by way of a non-custodial sentence. In the alternative counsel submitted that such suitable sentence be imposed other than death. She likewise proposed that the period spent in custody be taken into account. While appreciating that sentence is in the discretion of the Court, counsel proposed a term of imprisonment of not more than 20 years.
[5] The objectives of sentencing are manifold. At page 15 of the Judiciary Sentencing Guidelines , some of these objectives are set out as hereunder:
[a] Retribution : to punish the offender for his/her criminal conduct in a just manner.
[b] Deterrence : to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
[c] Rehabilitation : to enable the offender 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.
[e] Community protection : to protect the community by incapacitating the offender.
[f] Denunciation : to communicate the community’s condemnation of the criminal conduct.
[6] Hence, although Section 204 of the Penal Code stipulates that a person who commits the offence of murder shall be liable to death, it is not in every murder case that the penalty of death would be warranted. In Spence v The Queen; Hughes v the Queen (Spence & Hughes) (unreported, 2 April 2001) the Privy Council expressed the view that:
“In order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. There should be a requirement for individualized sentencing in implementing the death penalty.”
[7] I n its Directions in respect of the Muruatetu case the Supreme Court had occasion to reiterate the factors to take into account for purposes of sentencing in a murder case. Thus, at paragraph 18(vii) of the Directions dated 6 th July 2021 , the Supreme Court listed the following considerations:
[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 .
[8] Even where the Court is convinced that custodial sentence is the most appropriate, it is stated, at Paragraph 5.2.2 of the Judiciary Sentencing Guidelines, 2023 as follows in respect of the offence of murder:
5.2.2 The harm caused by such an offence is immeasurable. The sentence is not a measure of the value placed on the life of the victim. Therefore, the assessment of aggravating and mitigating features relating to the offence focusses on culpability. However, the victims’ family may wish to make a statement to the court about the impact of the offence.
[9] There is no doubt therefore that the accused was convicted of a heinous crime that attracts the death penalty as the maximum possible sentence. His conviction was upheld by the Court of Appeal. However, it is also the case that he was a first offender. He was afforded the opportunity to address the Court in mitigation through his counsel, Ms. Nyarige . It is therefore pertinent that he has been in custody for about 8 years now; and that he has a family that has been deprived of a bread-winner. Counsel also indicated that the accused is remorseful and has undergone rehabilitation.
[10] The Court called for a Pre-Sentence Report as well as a Victim Impact Statement. The Pre-Sentence Report shows that, as between the families of the accused and the deceased, hostility prevails as no reconciliation has been initiated or accomplished. The report further shows that the situation is very volatile as each side is on the alert for any further confrontation. From the local administration, it emerged that, given the level of animosity between the two families, they were hesitant to recommend non-custodial sentence. On the basis of their inquiries, observations and findings, the County Director of Probation and Aftercare Services formed the opinion that the accused is not suitable for non-custodial sentence.
[11] Thus, having taken all the foregoing factors into account, it is manifest that non-custodial sentence is not appropriate in the circumstances. In this case, I have taken into account the deliberate and premeditated manner in which the offence was executed by the accused. I consider a custodial sentence of 30 years to be appropriate in the circumstances.
[12] Accordingly, it is hereby ordered that, in lieu of the death penalty earlier imposed on him, the accused be and hereby re-sentenced to 30 years’ imprisonment. I have also noted that the accused has been in custody since the date of his arraignment in court on 5 th August 2014. It could well be that he has been in custody from the date of his arrest prior to the 5 th August 2014. Since the exact date of his arrest is not discernible from the record, it is hereby ordered that the imprisonment term of 30 years be reckoned from the 5 th August 2014 when the accused was first arraigned before court.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 28 TH DAY OF JANUARY 2026
5 | Page HCCRA NO 35 OF 2014 RE-SENTENSING