https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1413

Amayo alias Zakayo Amayo & 2 others v Republic (Criminal Appeal E268 of 2022) [2026] KECA 1413 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1413 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E268 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Fredrick Ochieng Amayo alias Zakayo Amayo 1st Appellant Kelvin Odhiambo Ochieng alias Ocham Amayo 2nd Appellant Nation Ochieng Amayo alias Ochieng Boyo 3rd Appellant and Republic Respondent (Being an appeal on sentence from the Judgment of the High Court of Kenya at Migori (Wendoh, J) dated 16th June, 2022 in HCCRC No. 27 of 2018 Criminal Case 27 of 2018 ) Judgment 1.This is a first appeal against the sentence imposed by the High Court of Kenya at Migori, “the trial court”, on Fredrick Ochieng Amayo, Kelvin Odhiambo Ochieng, and Nation Ochieng Amayo, “the appellants”. They were charged, tried, convicted and sentenced to 30 years’ imprisonment each, with the sentences being ordered to run concurrently; on two counts of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on 2nd January 2018 at Kojea village, Onguo Sub-Location, Suna East Sub-County, Migori County, they jointly with others not before court murdered Daniel Taabu Siso and Wilfred Muyonga Msala, “the 1st and 2nd deceased respectively”. They pleaded not guilty to both counts and their trial soon thereafter ensued. 2.The prosecution’s case albeit briefly was that the appellants, acting in concert with others, brutally attacked the deceased persons with lethal weapons in broad daylight, resulting in their deaths on the allegations that they had burned down the house of William Odoyo Chacha, a neighbour. Prior to the incident, the 1st appellant who was a village elder had gone round the village proclaiming that a witchdoctor would be visiting the village to name and shame the arsonists who had burned down the house. He consequently convened a village meeting towards that end. 3.At the meeting, the two deceased who were also in the meeting were fingered by the witchdoctor as among those who were involved in the arson. The meeting soon thereafter degenerated into pandemonium with the deceased, as they fled the meeting being chased by the appellants amongst other members of the public. The 1st deceased was soon thereafter cornered and the 1st appellant was seen cutting the deceased him with a panga, the 2nd appellant struck him with a metal rod on the head whereas the 3rd appellant speared him in the back. Though the 2nd deceased managed to escape to his brother’s house nearby, he was nonetheless pursued by the same group who broke into the house and therein jointly and fatally attacked him with the same weapons. 4.According to Dr. Olang’o Sylvester Ochieng who conducted the postmortem on the bodies, confirmed that the deceased suffered multiple deep cut wounds penetrating the skull and brain, and body injuries, consistent with assault by sharp and blunt weapons. The investigating officer, narrated the sequence of investigations, arrests, and confirmed that the appellants were identified by eyewitnesses as active participants in the killings. 5.In their defence, the appellants denied committing the offence and claimed that they were victims of mistaken identity and community hostility, and that the actual perpetrators were still at large out there. 6.The trial Court found the prosecution witnesses credible and consistent and reliable. Consequently, and as already stated, the appellants were convicted of two counts of murder and sentenced to 30 years’ imprisonment each, with the sentences being ordered to run concurrently. 7.Being dissatisfied, the appellants are now before this Court on a first appeal limited to sentence only on grounds: that the trial court erred in law and fact by imposing a harsh, excessive, and unconscionable sentence; and that the sentence though not illegal, was disproportionate to the alleged offences, as it failed to adequately consider the mitigating factors proffered, and was contrary to the principles of individualized sentencing. 8.When the appeal was called for plenary hearing, Mr. Mirembe, learned counsel appeared for the appellants, whereas Ms. Mumu held brief for Ms. Ikol, learned Assistant Director of Public Prosecutions for the respondent. Both Counsel elected to rely entirely on their written submissions that they had filed and exchanged. 9.Mr. Mirembe, in his submissions reiterated that the sentence imposed was harsh, excessive, unconscionable and disproportionate to the circumstances of the case and failed to adequately consider the mitigating factors presented at trial. He emphasized that each appellant was a first offender, had dependents, expressed remorse, and had been in custody since January 2018, which period ought to have been factored into the sentence pursuant to section 333(2) of the Criminal Procedure Code. 10.He therefore urged this Court to re-examine the mitigation and impose a much lesser sentence that upholds justice, rehabilitation, and fairness to the appellants. 11.Counsel for the respondent on the other hand submitted that the sentence imposed was neither harsh nor excessive but was justified given the brutal manner in which the appellants murdered the deceased persons. She argued that the appellants acted with common intention the principle of joint liability displaced the need for individualized sentencing based on minor distinctions of age or mitigation. 12.On time spent in custody, counsel conceded this ground stating that the trial court ought to have factored in the sentence, the period the appellants had been in remand custody, in line with section 333(2) of the Criminal Procedure Code. Counsel otherwise urged the Court to retain the sentences, subject only to adjustment aforesaid. 13.In our view, only one issue arises for determination: Whether the sentence imposed upon each appellant was harsh, excessive, and disproportionate. 14.We have carefully considered the record. We appreciate that sentencing rests entirely in the discretion of the trial court. However, it must reflect both the seriousness of the offence and the personal circumstances of the offender. The trial court noted the mitigation advanced by the appellants but imposed a uniform sentence of 30 years imprisonment without demonstrating how the mitigating factors were weighed against the aggravating circumstances. In our view, this was a misdirection. 15.We also take notice of the context in which the offence occurred.The record shows that the killings followed a witchdoctor’s pronouncement in a community where belief in witchcraft is deeply rooted and rampant. The attack was spontaneous, arising from suspicion and mob reaction rather than premeditated planning. While this does not absolve the appellants of responsibility, it does mitigate the degree of malice aforethought. In similar circumstances, this Court has held that killings arising from witchcraft accusations and believes in certain communities may properly be treated as manslaughter rather than murder, or at the very least warrant a reduced sentence. See for instance Charo Kalu v Republic [2015] eKLR. That said, however, we would not wield into the arena not invited by the parties by deciding to substitute the conviction for murder with manslaughter, since the appeal before us is strictly on sentence for the offence of murder. 16.Accordingly, while the conviction for murder is upheld, the sentence imposed upon each appellant is set aside. In its place, we substitute a sentence of fifteen (15) years’ imprisonment to run from the date they were arraigned in court on 27th August, 2018 and before they were each released on bail pending trial sometimes in November, 2018, thereby giving effect to section 333(2) of the Criminal Procedure Code, and ensuring that the punishment is proportionate, individualized, and just in light of the circumstances of the offence and the cultural context of witchcraft accusations. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL..........................................E.C. MWITAJUDGE OF APPEAL..........................................B. ONGAYAJUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR