' The Accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge were that on the 15 th day of November 2022 at Getare Location in Manga Sub-County within Nyamira County murdered ANNA KERUBO PATEL.
The murder charge was however reduced to the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code following a plea bargain agreement. He pleaded guilty to the lesser charge and was on 3 rd July 2025 convicted on his own plea of guilty.
On mitigation, Ms. Shilwatso Advocate for the Accused, submitted that the Accused is remorseful for the offence and that he had been in remand since November 2022. Ms Shilwatso pleaded for leniency on behalf of the Accused and urged the court to consider meting out a non-custodial sentence.
Mr. Chirchir, Learned Counsel for the State, submitted that the Accused is a first offender.
The Pre-Sentence Report, dated 16 th September 2025, recommends a lenient sentence and states that the Accused committed the offence out of a fit of rage following an altercation with the deceased who was his own sister. The report further shows that the Accused’s own family and members of the community were agreeable to a lenient custodial sentence.
Sentencing is embedded at the core of the administration of the criminal justice system. In Thomas Mwambu Wenyi vs. Republic (2017) eKLR the Court of Appeal held thus: -
“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
This Court refers to the objectives of sentencing as outlined in the Judiciary Sentencing Policy Guidelines at paragraph 4.1 as follows: -
Retribution – to punish the offender for his/her criminal conduct in a just manner.
Deterrence – to deter the offender from committing a similar offence subsequently as well as to discourage the people from committing similar offences.
Rehabilitation – to enable the offender reform from his/her criminal disposition and become a law-abiding person.
Restorative justice – to address the needs arising from the criminal conduct such as loss and damages.
Community protection – to protect the community by incapacitating the offender.
Denunciation - to communicate the community’s condemnation of the criminal conduct.
During sentencing, the court must bear in mind the circumstances of a case and the law. The court must also take into account the aggravating and mitigating factors of the case.
The Sentencing Policy Guidelines at page 49, Paragraph 23.8 , suggest mitigating circumstances as follows: -
8. Mitigating circumstances warrant a more lenient penalty than would be ordinarily imposed in their absence. They include: -
A great degree of provocation.
Commitment to repairing the harm caused by the offender’s conduct evidenced by the actions such as compensation, reconciliation and restitution prior to conviction.
Negligible harm or damage caused.
Mental illness or impaired functioning of the mind.
Age, where it affects the responsibility of the individual offender.
Playing of a minor role in the offence.
Being a first offender.
Remorsefulness.
Commission of a crime in response to gender-based violence.
Pleading guilty at the earliest opportunity and cooperation with the prosecution and the police.
From the facts of this case, I note that the deceased and the Accused were sister and brother respectively. The Post Mortem Report (P.Ex3), reveals that the deceased died as a result of complications from a chest injury occasioned by sharp force trauma, consistent with the stabbing wound inflicted by the Appellant during the fight.
The facts of the case show that this was murder committed at the heat of the moment in a fight that got out of hand which, the Accused has stated, he deeply regrets.
The Court is cognizant of the fact that a life was lost. The pre-sentence report indicates that the deceased was a loving sibling and a caregiver. It is also indicated that the incident shook the whole family.
While appreciating both sides of the case, this Court must condemn in the strongest terms possible, acts of violence committed between family members that result in fatalities as in the present case. It is not lost on the Court that the Accused was a first offender and that he committed the offence in a fit of rage. In line with the objectives of sentencing, in particular retribution and denunciation, it is my finding that a custodial sentence will be most appropriate in the circumstances.
The offended section of the Penal Code with which the Accused has been convicted stipulates the punishment as follows: -
205. Punishment of manslaughter.
Any person who commits the felony of manslaughter is liable to imprisonment for life.
The import of this provision is that a court of law may impose any sentence to a maximum limit of life imprisonment, if the circumstances call for it. In other words, the Court may impose any other shorter term of imprisonment based on the circumstances of the case.. In the case of Opoya vs. Uganda [1967] EA 752 where the Court said at page 754 paragraph B it was held thus: -
“It seems to us beyond argument the words “shall be liable to” do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it”.
Having regard to the fact that the Accused is 47 years old, a first offender and that he pleaded guilty to the charge thereby saving the Court precious judicial time, I find that imposing the maximum sentence prescribed by the law would be excessive and unnecessary. This is predicated on the principles espoused in the case of S. vs. Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35 thus: -
“Plainly, any sentence imposed must have deterrent and retributive force. But off course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones. …….It is trite that it is in the interest of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”
The loss of life must however be accounted for. In the premises, this Court holds that the sentence to be meted must be reflective of society’s indignation of the Accused person’s conduct. I therefore sentence the Accused to serve six (6) years imprisonment. The sentence shall however begin to run from the date of arrest in line with the provisions of Section 333 (2) of the Criminal Procedure Code which requires the court consider the period spent in remand custody during sentencing.
It is so ordered.
'
The murder charge was however reduced to the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code following a plea bargain agreement. He pleaded guilty to the lesser charge and was on 3 rd July 2025 convicted on his own plea of guilty.
On mitigation, Ms. Shilwatso Advocate for the Accused, submitted that the Accused is remorseful for the offence and that he had been in remand since November 2022. Ms Shilwatso pleaded for leniency on behalf of the Accused and urged the court to consider meting out a non-custodial sentence.
Mr. Chirchir, Learned Counsel for the State, submitted that the Accused is a first offender.
The Pre-Sentence Report, dated 16 th September 2025, recommends a lenient sentence and states that the Accused committed the offence out of a fit of rage following an altercation with the deceased who was his own sister. The report further shows that the Accused’s own family and members of the community were agreeable to a lenient custodial sentence.
Sentencing is embedded at the core of the administration of the criminal justice system. In Thomas Mwambu Wenyi vs. Republic (2017) eKLR the Court of Appeal held thus: -
“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
This Court refers to the objectives of sentencing as outlined in the Judiciary Sentencing Policy Guidelines at paragraph 4.1 as follows: -
Retribution – to punish the offender for his/her criminal conduct in a just manner.
Deterrence – to deter the offender from committing a similar offence subsequently as well as to discourage the people from committing similar offences.
Rehabilitation – to enable the offender reform from his/her criminal disposition and become a law-abiding person.
Restorative justice – to address the needs arising from the criminal conduct such as loss and damages.
Community protection – to protect the community by incapacitating the offender.
Denunciation - to communicate the community’s condemnation of the criminal conduct.
During sentencing, the court must bear in mind the circumstances of a case and the law. The court must also take into account the aggravating and mitigating factors of the case.
The Sentencing Policy Guidelines at page 49, Paragraph 23.8 , suggest mitigating circumstances as follows: -
8. Mitigating circumstances warrant a more lenient penalty than would be ordinarily imposed in their absence. They include: -
A great degree of provocation.
Commitment to repairing the harm caused by the offender’s conduct evidenced by the actions such as compensation, reconciliation and restitution prior to conviction.
Negligible harm or damage caused.
Mental illness or impaired functioning of the mind.
Age, where it affects the responsibility of the individual offender.
Playing of a minor role in the offence.
Being a first offender.
Remorsefulness.
Commission of a crime in response to gender-based violence.
Pleading guilty at the earliest opportunity and cooperation with the prosecution and the police.
From the facts of this case, I note that the deceased and the Accused were sister and brother respectively. The Post Mortem Report (P.Ex3), reveals that the deceased died as a result of complications from a chest injury occasioned by sharp force trauma, consistent with the stabbing wound inflicted by the Appellant during the fight.
The facts of the case show that this was murder committed at the heat of the moment in a fight that got out of hand which, the Accused has stated, he deeply regrets.
The Court is cognizant of the fact that a life was lost. The pre-sentence report indicates that the deceased was a loving sibling and a caregiver. It is also indicated that the incident shook the whole family.
While appreciating both sides of the case, this Court must condemn in the strongest terms possible, acts of violence committed between family members that result in fatalities as in the present case. It is not lost on the Court that the Accused was a first offender and that he committed the offence in a fit of rage. In line with the objectives of sentencing, in particular retribution and denunciation, it is my finding that a custodial sentence will be most appropriate in the circumstances.
The offended section of the Penal Code with which the Accused has been convicted stipulates the punishment as follows: -
205. Punishment of manslaughter.
Any person who commits the felony of manslaughter is liable to imprisonment for life.
The import of this provision is that a court of law may impose any sentence to a maximum limit of life imprisonment, if the circumstances call for it. In other words, the Court may impose any other shorter term of imprisonment based on the circumstances of the case.. In the case of Opoya vs. Uganda [1967] EA 752 where the Court said at page 754 paragraph B it was held thus: -
“It seems to us beyond argument the words “shall be liable to” do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it”.
Having regard to the fact that the Accused is 47 years old, a first offender and that he pleaded guilty to the charge thereby saving the Court precious judicial time, I find that imposing the maximum sentence prescribed by the law would be excessive and unnecessary. This is predicated on the principles espoused in the case of S. vs. Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35 thus: -
“Plainly, any sentence imposed must have deterrent and retributive force. But off course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones. …….It is trite that it is in the interest of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”
The loss of life must however be accounted for. In the premises, this Court holds that the sentence to be meted must be reflective of society’s indignation of the Accused person’s conduct. I therefore sentence the Accused to serve six (6) years imprisonment. The sentence shall however begin to run from the date of arrest in line with the provisions of Section 333 (2) of the Criminal Procedure Code which requires the court consider the period spent in remand custody during sentencing.
It is so ordered.
'