1. The accused herein is charged with the offence of Murder Contrary to Section 203 as Read with Section 304 of the Penal Code. Particulars are that on 23rd March 2021 at Kipchumwa Location in Marakwet East Sub Couty in Elgeyo Marakwet County, he unlawfully caused the death of Jemutai Winny. The accused pleaded NOT GUILTY to the charge on the date of plea but subsequently entered a Plea Bargain Agreement wherein the Charge of Murder was reduced to one of Manslaughter Contrary to Section 202 as Read with Section 205 of the Penal Code to which the accused pleaded GUILTY.
2. The Prosecution in the Plea bargain Agreement seeks that the accused be sentenced to a term of 10 years imprisonment. The Defence seeks for a probation sentence for reasons that when the accused committed the offence, he was very intoxicated and was under the influence of alcohol. Before passing sentence, the court sought for a Probation Pre-Sentence Report and the same dated 30th May 2025 was duly filed.
3. I have considered the contents thereof and the recommendations therein. The report also recommends for a non-custodial sentence in terms of a three (3) year Probation sentence in line with the reasons advanced by the Defence and also for reasons that the offence committed was within the family set up where the interaction of the offender with other family members was said to be good and that the occurrence of the offence is majorly connected to the offender’s drunken behaviour.
4. That further, the offender is remorseful and desires to reunite with his family with whom he has a good relationship, they have been visiting him in prison and he has no fear and/or apprehension at all in reuniting with them as well as with the larger community who had resorted to forgive the offender notwithstanding the general feeling that the offence was premeditated and that they are willing to carry out the necessary cultural cleansing rites upon the accused return.
5. The Report therefore opined that in light of the above, hostility had ceased and the home environment was favourable for the accused return hence the recommendation for the non-custodial sentence for purposes of the rehabilitation of the accused, for the reconciliation to take place and for the accused to resume his parental duties.
6. In noting all the above and before sentencing the accused, it is my considered opinion that a brief recap of the circumstances under which the offence was committed is necessary as follows; On the material day, the accused came home drunk and found his two children being his 10 year old daughter and the deceased. The accused then asked where his bow and arrows were and the deceased then replied that she does not know. The accused got hold of the deceased and took her to the family grass thatched store, locked her therein and set it on fire then ran away. The deceased got burnt to ashes.
7. In the Revised Sentencing Policy Guidelines, the Principles underpinning the sentencing process have been set out as folllos;
1.2.1 Proportionality: The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender. The principle of proportionality is grounded within the concept of just deserts and is embraced by common law.
1.2.2 Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for same offences committed by offenders in similar circumstances.
1.2.3 Accountability and Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines.
1.2.4 Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process.
1.2.5 Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole.
12.6 Respect for Human Rights and Fundamental Freedoms: The sentences imposed must promote, and not undermine, human rights and fundamental freedoms. Whilst upholding the dignity of both the offender (and where relevant, the victim), the sentencing regime should contribute to the broader enjoyment of human rights and fundamental freedoms in Kenya. Sentencing impacts on crime control and has a direct correlation to fostering an environment in which human rights and fundamental freedoms are enjoyed.
8. At part 1.3 thereof, the Objectives of Sentencing have been set out as follows;
1.3.1 Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other –insofar as possible, sentences imposed should be geared towards meeting the objectives in totality.
i. Retribution: To punish the offender for their criminal conduct in a just manner.
ii. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.
iii. Rehabilitation: To enable the offender to 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 sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.
v. Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.
vi. Denunciation: To clearly 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
9. In considering the proposed sentence in light of the circumstances of the commission of the offence, and in regard to the following principle of proportionality in sentencing and the objective of retribution, deterrence and restorative justice, it is my very well considered opinion that a probation sentence would amount to a mere slap on the wrist of the accused for reasons that it is overly lenient.
10. For reasons that the maximum sentence for Manslaughter is life imprisonment, even as the court notes that the accused has saved it from the rigours and time consuming process of a full trial, has owned up to his act of criminality and is remorseful, even still, the court notes that the accused caused the death of his own child in a very painful and heinous manner, in circumstances that were totally and completely unprovoked and unwarranted.
11. In this regard, I am well satisfied that the proposal by the Prosecution that the accused be sentenced to a term of imprisonment of 10 years amounts to a fair just and reasonable punishment to the accused in conformity with the principles and objectives of sentencing herein underscored. I therefore sentyence the accused to a term of ten (10) years imprisonment and in light of the mandatory requirements of Section 333(2) of the Criminal Procedure Code, the sentence is to run from the date of the arrest and arraignment of the accused in court. It is so ordered.
12. Right of Appeal 14 days
Read Dated and Signed at ELDORET on 9th July 2025
2. The Prosecution in the Plea bargain Agreement seeks that the accused be sentenced to a term of 10 years imprisonment. The Defence seeks for a probation sentence for reasons that when the accused committed the offence, he was very intoxicated and was under the influence of alcohol. Before passing sentence, the court sought for a Probation Pre-Sentence Report and the same dated 30th May 2025 was duly filed.
3. I have considered the contents thereof and the recommendations therein. The report also recommends for a non-custodial sentence in terms of a three (3) year Probation sentence in line with the reasons advanced by the Defence and also for reasons that the offence committed was within the family set up where the interaction of the offender with other family members was said to be good and that the occurrence of the offence is majorly connected to the offender’s drunken behaviour.
4. That further, the offender is remorseful and desires to reunite with his family with whom he has a good relationship, they have been visiting him in prison and he has no fear and/or apprehension at all in reuniting with them as well as with the larger community who had resorted to forgive the offender notwithstanding the general feeling that the offence was premeditated and that they are willing to carry out the necessary cultural cleansing rites upon the accused return.
5. The Report therefore opined that in light of the above, hostility had ceased and the home environment was favourable for the accused return hence the recommendation for the non-custodial sentence for purposes of the rehabilitation of the accused, for the reconciliation to take place and for the accused to resume his parental duties.
6. In noting all the above and before sentencing the accused, it is my considered opinion that a brief recap of the circumstances under which the offence was committed is necessary as follows; On the material day, the accused came home drunk and found his two children being his 10 year old daughter and the deceased. The accused then asked where his bow and arrows were and the deceased then replied that she does not know. The accused got hold of the deceased and took her to the family grass thatched store, locked her therein and set it on fire then ran away. The deceased got burnt to ashes.
7. In the Revised Sentencing Policy Guidelines, the Principles underpinning the sentencing process have been set out as folllos;
1.2.1 Proportionality: The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender. The principle of proportionality is grounded within the concept of just deserts and is embraced by common law.
1.2.2 Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for same offences committed by offenders in similar circumstances.
1.2.3 Accountability and Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines.
1.2.4 Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process.
1.2.5 Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole.
12.6 Respect for Human Rights and Fundamental Freedoms: The sentences imposed must promote, and not undermine, human rights and fundamental freedoms. Whilst upholding the dignity of both the offender (and where relevant, the victim), the sentencing regime should contribute to the broader enjoyment of human rights and fundamental freedoms in Kenya. Sentencing impacts on crime control and has a direct correlation to fostering an environment in which human rights and fundamental freedoms are enjoyed.
8. At part 1.3 thereof, the Objectives of Sentencing have been set out as follows;
1.3.1 Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other –insofar as possible, sentences imposed should be geared towards meeting the objectives in totality.
i. Retribution: To punish the offender for their criminal conduct in a just manner.
ii. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.
iii. Rehabilitation: To enable the offender to 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 sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.
v. Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.
vi. Denunciation: To clearly 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
9. In considering the proposed sentence in light of the circumstances of the commission of the offence, and in regard to the following principle of proportionality in sentencing and the objective of retribution, deterrence and restorative justice, it is my very well considered opinion that a probation sentence would amount to a mere slap on the wrist of the accused for reasons that it is overly lenient.
10. For reasons that the maximum sentence for Manslaughter is life imprisonment, even as the court notes that the accused has saved it from the rigours and time consuming process of a full trial, has owned up to his act of criminality and is remorseful, even still, the court notes that the accused caused the death of his own child in a very painful and heinous manner, in circumstances that were totally and completely unprovoked and unwarranted.
11. In this regard, I am well satisfied that the proposal by the Prosecution that the accused be sentenced to a term of imprisonment of 10 years amounts to a fair just and reasonable punishment to the accused in conformity with the principles and objectives of sentencing herein underscored. I therefore sentyence the accused to a term of ten (10) years imprisonment and in light of the mandatory requirements of Section 333(2) of the Criminal Procedure Code, the sentence is to run from the date of the arrest and arraignment of the accused in court. It is so ordered.
12. Right of Appeal 14 days
Read Dated and Signed at ELDORET on 9th July 2025