REPUBLIC OF KENYA
IN THE HIGH COURT AT MOMBASA
CRIMINAL CASE NO. E012 OF 2020
REPUBLIC ………………………………………………………….……........... PROSECUTOR
VERSUS
MARTIN ODHIAMBO OGINA ……………………….……………………………. ACCUSED
RULING ON SENTENCE
1. The accused person herein, Martin Odhiambo Ogina, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 25 th December 2018 at Tudor area in Mombasa County, jointly with others not before Court, the accused murdered Joseph Ochieng Otieno.
2. He pleaded not guilty to the charge and after a full trial he was convicted to the charge. The court then called for both Victim Impact Statement and Pre-sentence inquiry Report. The same were prepared and filed by Mr Boytone Omondi, a Senior Probation Officer.
3. The accused person’s advocate Mr Nyabena, made oral submissions on mitigation and Mr Sirima submitted on behalf of the state.
4. Sentencing is an exercise of the Court’s discretion. The Court is guided by the Constitution, any other relevant laws on sentencing and the 2023 Judiciary of Kenya Sentencing Policy Guidelines. Despite the importance of the guidelines, sentencing remains the exercise of judicial jurisdiction as was expressed by the Supreme Court in Francis Karioko Muruatetu & Another -V- Republic (2017) eKLR where the Court held: -
“(72) we wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process”.
5. Page 15, paragraph 4.1 of the Sentencing Policy Guidelines provides as follows: -
(i) Retribution: to punish the offender for his/her criminal conduct in a just manner;
(ii) Deterrence ; to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences;
(iii) Rehabilitation ; to enable the offender reform from his/her criminal disposition and become a law-abiding person;
(iv) Restorative justice ; to address the needs arising from the criminal conduct such as loss and damages;
(v) Community Protection ; to police the community by incapacitating the offender.
(vi) Denunciation ; to communicate the community’s condemnation of the criminal conduct.
(vii) Reconciliation ; to mend the relationship between the offender the victim and the community
(viii) Reintegration ; To facilitate the re-entry of the offender into the society.
6. In sentencing, the court also considers various mitigating factors. (See Muruatetu Case)
i. Age of the offender;
ii. Being a first offender;
iii. Whether the offender pleaded guilty;
iv. Character and record of the offender;
v. Commission of the offence in response to gender-based violence;
vi. Remorsefulness of the offender;
vii. The possibility of reform and social re-adaptation of the offender;
viii. Any other factor that the court considers relevant.
7. This Court has considered the mitigation by the Counsel and the reports on record. From the mitigation and the pre-sentence report it is clear that the accused person is remorseful and takes full responsibility for the death of the deceased. The deceased was his 1 st cousin. He regrets the commission of the offence as the same was done out of lack of judgement.
8. Having taken his mitigation into account, the fact that he is a first offender, the presentence report, the victim impact statement and the circumstances surrounding the commission of the offence, this court considers a deterrence sentence appropriate. I therefore sentence the accused person to serve twenty years’ imprisonment.
9. From the record, the accused person was released on bond throughout his trial. The sentence to run from 23/10/2025 when he was convicted.
10. Right of appeal against both the judgment and sentence explained to the accused person in Kiswahili.
11. It is so ordered.
DELIVERED, DATED and SIGNED at MOMBASA on this 12 th day of FEBRUARY 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
THE ACCUSED PERSON AND HIS ADVOCATE - MR.NYABENA
MR SIRIMA FOR THE STATE
MS BEBORA COURT ASSISTANT
IN THE HIGH COURT AT MOMBASA
CRIMINAL CASE NO. E012 OF 2020
REPUBLIC ………………………………………………………….……........... PROSECUTOR
VERSUS
MARTIN ODHIAMBO OGINA ……………………….……………………………. ACCUSED
RULING ON SENTENCE
1. The accused person herein, Martin Odhiambo Ogina, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 25 th December 2018 at Tudor area in Mombasa County, jointly with others not before Court, the accused murdered Joseph Ochieng Otieno.
2. He pleaded not guilty to the charge and after a full trial he was convicted to the charge. The court then called for both Victim Impact Statement and Pre-sentence inquiry Report. The same were prepared and filed by Mr Boytone Omondi, a Senior Probation Officer.
3. The accused person’s advocate Mr Nyabena, made oral submissions on mitigation and Mr Sirima submitted on behalf of the state.
4. Sentencing is an exercise of the Court’s discretion. The Court is guided by the Constitution, any other relevant laws on sentencing and the 2023 Judiciary of Kenya Sentencing Policy Guidelines. Despite the importance of the guidelines, sentencing remains the exercise of judicial jurisdiction as was expressed by the Supreme Court in Francis Karioko Muruatetu & Another -V- Republic (2017) eKLR where the Court held: -
“(72) we wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process”.
5. Page 15, paragraph 4.1 of the Sentencing Policy Guidelines provides as follows: -
(i) Retribution: to punish the offender for his/her criminal conduct in a just manner;
(ii) Deterrence ; to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences;
(iii) Rehabilitation ; to enable the offender reform from his/her criminal disposition and become a law-abiding person;
(iv) Restorative justice ; to address the needs arising from the criminal conduct such as loss and damages;
(v) Community Protection ; to police the community by incapacitating the offender.
(vi) Denunciation ; to communicate the community’s condemnation of the criminal conduct.
(vii) Reconciliation ; to mend the relationship between the offender the victim and the community
(viii) Reintegration ; To facilitate the re-entry of the offender into the society.
6. In sentencing, the court also considers various mitigating factors. (See Muruatetu Case)
i. Age of the offender;
ii. Being a first offender;
iii. Whether the offender pleaded guilty;
iv. Character and record of the offender;
v. Commission of the offence in response to gender-based violence;
vi. Remorsefulness of the offender;
vii. The possibility of reform and social re-adaptation of the offender;
viii. Any other factor that the court considers relevant.
7. This Court has considered the mitigation by the Counsel and the reports on record. From the mitigation and the pre-sentence report it is clear that the accused person is remorseful and takes full responsibility for the death of the deceased. The deceased was his 1 st cousin. He regrets the commission of the offence as the same was done out of lack of judgement.
8. Having taken his mitigation into account, the fact that he is a first offender, the presentence report, the victim impact statement and the circumstances surrounding the commission of the offence, this court considers a deterrence sentence appropriate. I therefore sentence the accused person to serve twenty years’ imprisonment.
9. From the record, the accused person was released on bond throughout his trial. The sentence to run from 23/10/2025 when he was convicted.
10. Right of appeal against both the judgment and sentence explained to the accused person in Kiswahili.
11. It is so ordered.
DELIVERED, DATED and SIGNED at MOMBASA on this 12 th day of FEBRUARY 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
THE ACCUSED PERSON AND HIS ADVOCATE - MR.NYABENA
MR SIRIMA FOR THE STATE
MS BEBORA COURT ASSISTANT