REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.44 OF 2023
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
WILSON TOROITICH………………………….……….…….. ACCUSED
WILSON TOROITICH was charged with murder c/s 203 as read with s. 204 of the Penal code. It was alleged that on the night of 25/26 th December 2020 at Timsales Company Servants quarters in Sabatia Forest , Koibatek Subcounty Baringo County he murdered Daniel Kipkorir Kipng’ok.
After the trial the court (Ng’etich J as she then was) found him guilty of manslaughter c/s 202 as read with s. 205 of the Penal Code.
The offence of Manslaughter carries as a maximum penalty of life imprisonment .
The basis for the sentencing hearing cannot be overemphasized. This is evident from the first edition of the Judiciary Sentencing Policy Guidelines where the then Chief Justice made this observation;
Sentencing has been a problematic area in the administration of justice. It is one of those issues that has constantly given the Judiciary a bad name – and deservedly so. Sometimes out rightly absurd, disproportionate and inconsistent sentences have been handed down in criminal cases. This has fuelled public perception that the exercise of judicial discretion in sentencing is a whimsical exercise by judicial officers. [1]
The Hon Justice Msagha Mbogholi stated this in the same guidelines
Reaching a fair decision in sentencing is neither an easy nor straightforward process; several considerations come into play. While sentences are defined by law, the measure of what is an appropriate sentence in a given case is left to the discretion of judges and magistrates. As Justice McArdle is famously quoted saying, “Anyone can try a case. That is as easy as falling off a log. The difficulty comes in knowing what to do with a man once he has been found guilty.” Sentencing is as important as all other aspects of a criminal trial. Sentencing in Kenya has been marked by instances of unwarranted disparities, lack of certainty and transparency in decisions, disproportionate sentences and lack of uniformity in sentences with respect to same offences committed under similar circumstances. In other respects, lack of sufficient public education has contributed to misconceptions about sentencing, especially the undue focus on custodial sentences to the exclusion of other appropriate forms of sentences. [2]
Sentencing must be based on the principles of fairness, justice, proportionality and commitment to public safety
The sentencing guideline 2023 provide:
MANSLAUGHTER
5.2.6 Where an unlawful killing is done without an intention to kill (or cause grievous bodily harm?), the offence of manslaughter may be made out. In sentencing such cases, as with murder, the focus must lie primarily upon culpability. With manslaughter cases, the degree of culpability may vary widely, from the ‘one punch’ manslaughter to the case involving a prolonged campaign of domestic violence which ultimately results in the victim’s death. The focus must be on the offender’s actions and intentions at the time of the crime in assessing the degree of culpability. Sometimes a nuanced approach is called for. 5.2.7 In addition to the generic features contained in the GATS, some features that are relevant to assessing culpability in manslaughter cases include, but are not limited to the following:
i. Where death was caused in the course of an unlawful act which involved an intention by the offender to cause harm falling short of grievous bodily harm e.g., one punch that caused the victim to fall and suffer a catastrophic and fatal brain injury.
ii. Where death was caused in the course of an unlawful act that carried a high risk of death or grievous bodily harm which was or ought to have been obvious to the offender e.g., driving a motor vehicle dangerously through a crowded street.
iii. Where death was caused in the course of committing or escaping from a serious offence.
iv. Where the offender tried to conceal the offence by concealing, dismembering, or destroying the body.
v. Where death was caused in the course of self-defence or defence of another (though not amounting to a defence).
vi. Where there was no intention by the offender to cause ANY harm AND no obvious risk of anything more than minor harm e.g., the offender pushed the victim out of the way and the victim fell and suffered a fatal injury.
vii. Where the offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity. Examples might include the woman who suffers severe post-natal depression, or the war veteran who suffers post-traumatic stress disorder to the extent that he behaves in a way that is erratic and violent in the face of ordinary day-to-day stressors.
viii. Where there has been a history of violence towards the victim by the offender, this might be relevant to sentencing.
ix. Significant mental or physical suffering caused to the deceased.
x. Where the offence involved use of a weapon. xi. Offence committed in the presence of children (particularly relevant to domestic violence deaths)
During the sentence hearing Ms. Omari for that state submitted that the convict was 70 years of age; That the manslaughter offence occurred at his place of work. He acted in self defence. He was a watchman – that he insisted not to have known deceased but it was established that he was an employee of the company before. That the family of victim were still bitter over what happened, son and brother, he left behind 2 children, being taken care of grandparents without affection of father. Family of accused had not reached out for reconciliation/forgiveness.
she relied on Wafula -vs- R Cr. Appeal E100/2021 [2026]eKLR , where the court of appeal reduced sentence of 30 years to 15 years’ imprisonment. She submitted for a sentence of 15 years.
On her part Ms. Kogo for the convict submitted that the convict was at the time of offence protecting property of the timber company where he worked as a watchman. He regretted the entire incident as he was acting in self defence. That he fully cooperated with the investigation authority until his arrest. He did not waste anyone’s time, he cooperated fully. That currently he is frail , has blood pressure which requires constant management. Ms. Kogo asked for leniency and that the convict be considered for non-custodial sentence to enjoy the rest of his life with his grandchildren’s.
Further that the period he had spent in custody be considered.
On his part the convict told the court:
Ningeomba, wakati nilifungwa watoto walitoroka, mali ilipotea. Niko watoto mayatima, wengine waliolewa, naomba, kama mtarajiwa wa familia, mimi ndio tegemeo, bibi alienda, mpaka sasa. Naomba, makosa nimekosa, ningeomba tu, wanihurumie. Nilinunua plot…. nikajenga, inangojea stima tu, mimi nimezeeka. Sina nguvu – siwezi andikwa. Hiyo nyumba ilikuwa ritaya yangu. Wajukuu wamezaa vitukuu. Mimi ndio baba, babu , shosho.
Mambo yote ni yangu. Naomba tu.
I have read the Pre-sentence report.
I note that the Probation Officer refers to un-named un identified ‘siblings of the deceased’ who expressed bitterness that they were not aware of the court proceedings and were learning about it at the tail end. They are angry with the convict and his family for not tracing them to apologise.
Evidently the PACs officer did not read the file. He would have found out a brother of the deceased who testified as PW9 one Titus Kipchirchir Kipng’ok identified the body for postmortem. He ought to have named the siblings he spoke to.
There also some un unnamed administrators who are also bitter that the convict and his family never traced the family of the deceased to apologise or seek reconciliation, and on that basis that the court deals with the offender in accordance with relevant applicable laws.
It would appear to me that the Probation and After Care Services officer does not consider a Probation Order to be a ‘relevant applicable law’ and that is why he did not give his opinion as to whether or not the convict could benefit from a Probation Order. He also says that none of those interviewed suggested a non-custodial sentence. That is not okay. How could they? There is nothing in the report to suggest that this was explained to them and what it meant. A PACs officer was expected to not only collect information but also at analyse the same and give an independent view of the situation and an independent recommendation.
The Prosecution relied on Wafula v Republic [2026] KECA 280 (KLR) where the court of appeal stated
In this appeal, while the medical evidence confirmed fatal injuries caused by a sharp object, coupled with evidence of intoxication and a fracas, raise doubt as to whether the appellant formed the specific intent to kill the deceased. The presence of alcohol and the chaotic circumstances suggest that the act may have been spontaneous rather than premeditated. Guided by the principle that any doubt created in the prosecution’s case must be resolved in favour of the accused, we are satisfied that malice aforethought in the strict sense, was not proved beyond reasonable doubt, and the offence disclosed, given the circumstances, is more consistent with manslaughter contrary to Section 202 as read with Section 205 of the Penal Code other than murder.
31.We note that, the appellant was sentenced to thirty years’ imprisonment, by the trial court after it considered his mitigation. However, given this Court’s finding that the conviction for murder cannot stand and is substituted with manslaughter, the sentence must be revisited. Taking into account the appellant’s status as a first offender, his remorse, his family responsibilities, and his demonstrated efforts at reform while in custody, we are satisfied that a custodial sentence is still warranted but should be tempered by these mitigating factors. A sentence of fifteen years’ imprisonment is appropriate and proportionate in the circumstances.
32.In conclusion, we are satisfied that conviction for murder was unsafe as malice aforethought was not proved beyond reasonable doubt. The conviction for murder is therefore quashed and substituted with a conviction for the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The sentence of thirty years’ imprisonment is set aside and substituted with a sentence of fifteen years’ imprisonment from the date of arraignment in court. The appeal succeeds to that limited extent. ( emphasis mine)
The convict herein appears to fit into the description given by the court-. From the judgment in this matter , the convict was at his place of work as a watch man when he was attacked by some people one whom was armed with a knife, and in the process of the attack where he was also defending himself, the deceased was stabbed.
The Convict first appeared in court on 6 th January 2021. he was released on bond on 29 th June 2022, having spent about a year and a half in remand. I have taken into account that period and considerate sufficient custodial sentence.
I have also taken into account the circumstances of the offence. I find that the convict would benefit from a non -custodial sentence.
He is placed on Probation Supervision for Three Years with effect from the date of this order.
He will abide by the Probation Order and should he default the probation order may be revoked and converted into a custodial sentence.
Orders accordingly
Sentence dated, signed and delivered in open court at Eldama Ravine this 22 nd May 2026
Mumbua T Matheka
Judge
CA Karanja
Accused Present virtually
Ms. Omari for State
Mr. Kiptoo For accused
Mr. Gatumu Probation Officer
FOOTNOTES
[1] Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga
[2] Chairperson - Judicial Taskforce on Sentencing
Page 2 of 2
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.44 OF 2023
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
WILSON TOROITICH………………………….……….…….. ACCUSED
WILSON TOROITICH was charged with murder c/s 203 as read with s. 204 of the Penal code. It was alleged that on the night of 25/26 th December 2020 at Timsales Company Servants quarters in Sabatia Forest , Koibatek Subcounty Baringo County he murdered Daniel Kipkorir Kipng’ok.
After the trial the court (Ng’etich J as she then was) found him guilty of manslaughter c/s 202 as read with s. 205 of the Penal Code.
The offence of Manslaughter carries as a maximum penalty of life imprisonment .
The basis for the sentencing hearing cannot be overemphasized. This is evident from the first edition of the Judiciary Sentencing Policy Guidelines where the then Chief Justice made this observation;
Sentencing has been a problematic area in the administration of justice. It is one of those issues that has constantly given the Judiciary a bad name – and deservedly so. Sometimes out rightly absurd, disproportionate and inconsistent sentences have been handed down in criminal cases. This has fuelled public perception that the exercise of judicial discretion in sentencing is a whimsical exercise by judicial officers. [1]
The Hon Justice Msagha Mbogholi stated this in the same guidelines
Reaching a fair decision in sentencing is neither an easy nor straightforward process; several considerations come into play. While sentences are defined by law, the measure of what is an appropriate sentence in a given case is left to the discretion of judges and magistrates. As Justice McArdle is famously quoted saying, “Anyone can try a case. That is as easy as falling off a log. The difficulty comes in knowing what to do with a man once he has been found guilty.” Sentencing is as important as all other aspects of a criminal trial. Sentencing in Kenya has been marked by instances of unwarranted disparities, lack of certainty and transparency in decisions, disproportionate sentences and lack of uniformity in sentences with respect to same offences committed under similar circumstances. In other respects, lack of sufficient public education has contributed to misconceptions about sentencing, especially the undue focus on custodial sentences to the exclusion of other appropriate forms of sentences. [2]
Sentencing must be based on the principles of fairness, justice, proportionality and commitment to public safety
The sentencing guideline 2023 provide:
MANSLAUGHTER
5.2.6 Where an unlawful killing is done without an intention to kill (or cause grievous bodily harm?), the offence of manslaughter may be made out. In sentencing such cases, as with murder, the focus must lie primarily upon culpability. With manslaughter cases, the degree of culpability may vary widely, from the ‘one punch’ manslaughter to the case involving a prolonged campaign of domestic violence which ultimately results in the victim’s death. The focus must be on the offender’s actions and intentions at the time of the crime in assessing the degree of culpability. Sometimes a nuanced approach is called for. 5.2.7 In addition to the generic features contained in the GATS, some features that are relevant to assessing culpability in manslaughter cases include, but are not limited to the following:
i. Where death was caused in the course of an unlawful act which involved an intention by the offender to cause harm falling short of grievous bodily harm e.g., one punch that caused the victim to fall and suffer a catastrophic and fatal brain injury.
ii. Where death was caused in the course of an unlawful act that carried a high risk of death or grievous bodily harm which was or ought to have been obvious to the offender e.g., driving a motor vehicle dangerously through a crowded street.
iii. Where death was caused in the course of committing or escaping from a serious offence.
iv. Where the offender tried to conceal the offence by concealing, dismembering, or destroying the body.
v. Where death was caused in the course of self-defence or defence of another (though not amounting to a defence).
vi. Where there was no intention by the offender to cause ANY harm AND no obvious risk of anything more than minor harm e.g., the offender pushed the victim out of the way and the victim fell and suffered a fatal injury.
vii. Where the offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity. Examples might include the woman who suffers severe post-natal depression, or the war veteran who suffers post-traumatic stress disorder to the extent that he behaves in a way that is erratic and violent in the face of ordinary day-to-day stressors.
viii. Where there has been a history of violence towards the victim by the offender, this might be relevant to sentencing.
ix. Significant mental or physical suffering caused to the deceased.
x. Where the offence involved use of a weapon. xi. Offence committed in the presence of children (particularly relevant to domestic violence deaths)
During the sentence hearing Ms. Omari for that state submitted that the convict was 70 years of age; That the manslaughter offence occurred at his place of work. He acted in self defence. He was a watchman – that he insisted not to have known deceased but it was established that he was an employee of the company before. That the family of victim were still bitter over what happened, son and brother, he left behind 2 children, being taken care of grandparents without affection of father. Family of accused had not reached out for reconciliation/forgiveness.
she relied on Wafula -vs- R Cr. Appeal E100/2021 [2026]eKLR , where the court of appeal reduced sentence of 30 years to 15 years’ imprisonment. She submitted for a sentence of 15 years.
On her part Ms. Kogo for the convict submitted that the convict was at the time of offence protecting property of the timber company where he worked as a watchman. He regretted the entire incident as he was acting in self defence. That he fully cooperated with the investigation authority until his arrest. He did not waste anyone’s time, he cooperated fully. That currently he is frail , has blood pressure which requires constant management. Ms. Kogo asked for leniency and that the convict be considered for non-custodial sentence to enjoy the rest of his life with his grandchildren’s.
Further that the period he had spent in custody be considered.
On his part the convict told the court:
Ningeomba, wakati nilifungwa watoto walitoroka, mali ilipotea. Niko watoto mayatima, wengine waliolewa, naomba, kama mtarajiwa wa familia, mimi ndio tegemeo, bibi alienda, mpaka sasa. Naomba, makosa nimekosa, ningeomba tu, wanihurumie. Nilinunua plot…. nikajenga, inangojea stima tu, mimi nimezeeka. Sina nguvu – siwezi andikwa. Hiyo nyumba ilikuwa ritaya yangu. Wajukuu wamezaa vitukuu. Mimi ndio baba, babu , shosho.
Mambo yote ni yangu. Naomba tu.
I have read the Pre-sentence report.
I note that the Probation Officer refers to un-named un identified ‘siblings of the deceased’ who expressed bitterness that they were not aware of the court proceedings and were learning about it at the tail end. They are angry with the convict and his family for not tracing them to apologise.
Evidently the PACs officer did not read the file. He would have found out a brother of the deceased who testified as PW9 one Titus Kipchirchir Kipng’ok identified the body for postmortem. He ought to have named the siblings he spoke to.
There also some un unnamed administrators who are also bitter that the convict and his family never traced the family of the deceased to apologise or seek reconciliation, and on that basis that the court deals with the offender in accordance with relevant applicable laws.
It would appear to me that the Probation and After Care Services officer does not consider a Probation Order to be a ‘relevant applicable law’ and that is why he did not give his opinion as to whether or not the convict could benefit from a Probation Order. He also says that none of those interviewed suggested a non-custodial sentence. That is not okay. How could they? There is nothing in the report to suggest that this was explained to them and what it meant. A PACs officer was expected to not only collect information but also at analyse the same and give an independent view of the situation and an independent recommendation.
The Prosecution relied on Wafula v Republic [2026] KECA 280 (KLR) where the court of appeal stated
In this appeal, while the medical evidence confirmed fatal injuries caused by a sharp object, coupled with evidence of intoxication and a fracas, raise doubt as to whether the appellant formed the specific intent to kill the deceased. The presence of alcohol and the chaotic circumstances suggest that the act may have been spontaneous rather than premeditated. Guided by the principle that any doubt created in the prosecution’s case must be resolved in favour of the accused, we are satisfied that malice aforethought in the strict sense, was not proved beyond reasonable doubt, and the offence disclosed, given the circumstances, is more consistent with manslaughter contrary to Section 202 as read with Section 205 of the Penal Code other than murder.
31.We note that, the appellant was sentenced to thirty years’ imprisonment, by the trial court after it considered his mitigation. However, given this Court’s finding that the conviction for murder cannot stand and is substituted with manslaughter, the sentence must be revisited. Taking into account the appellant’s status as a first offender, his remorse, his family responsibilities, and his demonstrated efforts at reform while in custody, we are satisfied that a custodial sentence is still warranted but should be tempered by these mitigating factors. A sentence of fifteen years’ imprisonment is appropriate and proportionate in the circumstances.
32.In conclusion, we are satisfied that conviction for murder was unsafe as malice aforethought was not proved beyond reasonable doubt. The conviction for murder is therefore quashed and substituted with a conviction for the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The sentence of thirty years’ imprisonment is set aside and substituted with a sentence of fifteen years’ imprisonment from the date of arraignment in court. The appeal succeeds to that limited extent. ( emphasis mine)
The convict herein appears to fit into the description given by the court-. From the judgment in this matter , the convict was at his place of work as a watch man when he was attacked by some people one whom was armed with a knife, and in the process of the attack where he was also defending himself, the deceased was stabbed.
The Convict first appeared in court on 6 th January 2021. he was released on bond on 29 th June 2022, having spent about a year and a half in remand. I have taken into account that period and considerate sufficient custodial sentence.
I have also taken into account the circumstances of the offence. I find that the convict would benefit from a non -custodial sentence.
He is placed on Probation Supervision for Three Years with effect from the date of this order.
He will abide by the Probation Order and should he default the probation order may be revoked and converted into a custodial sentence.
Orders accordingly
Sentence dated, signed and delivered in open court at Eldama Ravine this 22 nd May 2026
Mumbua T Matheka
Judge
CA Karanja
Accused Present virtually
Ms. Omari for State
Mr. Kiptoo For accused
Mr. Gatumu Probation Officer
FOOTNOTES
[1] Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga
[2] Chairperson - Judicial Taskforce on Sentencing
Page 2 of 2