https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8125

Onzere v Republic (Criminal Miscellaneous Application E034 of 2026) [2026] KEHC 8125 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8125 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E034 of 2026 RN Nyakundi, J June 9, 2026 Between Cyrus Kavayi Onzere Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 18th May 2026, the Applicant seeks the following orders:a.That may the Hon. Court be pleased to declare this application certified and properly filed.b.That the Applicant herein was charged in a case of robbery with violence contrary to section296 (2) of the Penal Code in which a death penalty was the reward.c.That the Applicant petitioned high Court in regards to the sentence part only and the death sentence was replaced with a thirty (30) years sentence.d.That the Applicant then applied for consideration of section 333 (2) of the CPC which was then granted.e.That since the Applicant has been in prison since his arrest and has gone through the Rehabilitation and Reformation process; he is proved to be fully reformed.f.That the Applicant herein is now applying fora Non-custodial' Sentence since he is only left with two years six months (2 l/2) from a 30 years jail term from the original death sentence and which a Probative Sentencing Act is applicable, this application is supported by annexed affidavit of Cyrus Kavayi Onzere and such other grounds to be adduced at the hearing thereof. 2.In support of the application is the annexed affidavit of one Cyrus Kavayi Onzere who deponed as follows:a.That I am Kenyan male adult with sound mind hence competent to swear this affidavit under the laws of Kenya.b.That I am an inmate currently at Kibos Maximum Security Prison serving 30 years jail term.c.That I was arrested and charged in a robbery with violence case where I was found guilty and sentencedd.That I have been in prison since my arrest in the year 2008 and I have gone through rehabilitation and reformation procedures offered by the prison department.e.That since I am left with only two years six months (2 l/2) from the 30 years substituted from the death penalty, I humbly apply for a Probative And Non-custodial Sentence under the laws of Kenya.f.That I have fully reformed and promised to abide by the rules that shall be provided while awarding the Non-custodial Sentence as requested herein Decision 3.The Superior Courts have delved into the issue of sentencing which is one of the core functions of trial Courts within our Criminal justice system. In the Fatuma Hassan Salo v Republic [2006] eKLR Makhandia J as he then was remarked; Thus, the Court should be guided by evidence and sound legal principles when it comes to the arrival of its decision. He also stated that the Court should put into consideration all the relevant factors and exclude the irrelevant factors. In addition, the Court in Peter M. Kariuki v Attorney General, [2016] eKLR also made the following observations; That a Court has been granted discretion in a manner that is both judicial and reasonable – not upon caprice or personal opinion. This has been emphasized in the judgments of other cases to be useful to the appeal Court when analyzing the judgment of a Lower Court. 4.The Sentencing Guidelines of 2023 provide a foundation and a reference point for Judges and Magistrates in exercising discretion. The Policy Guidelines provides for a three-step approach that is to be applied by a trial Court in individualizing specific sentences befitting specific offences.a.Sentencing options – The Court is meant to consider the sentencing options that are provided for by the statute where the crime falls under. This means a reference to the statute that provides for the crime in question.b.Custodial v non-custodial – For the statutes that provide for both custodial and non-custodial options, the guidelines give principles that are to be considered in analyzing which of these two orders would be the most appropriate.c.The third step is twofold, the choice that is to be considered depends on which option was made in step 3.i.For a non-custodial sentence, the guidelines have also provided a policy through which the Courts discretion is to be applied in choosing the most appropriate non-custodial sentence and eventually mitigation and aggravating circumstances are expected to be put into considerationii.For imprisonment, the same applies, that the guidelines have provided for a policy to be used in determining how long the term of imprisonment should be after the consideration of aggravating and mitigating circumstances. 5.A proper recrafted legal framework is needed to meet the challenging task of appropriate sentencing given the disparities on the various sanctions of what one considers to be the same offence with the prescribed sentence by the Legislature. 6.Having been in this space as a legal professional involved in adjudication of cases within the scope of criminal law, I am of the view that there is an urgent need to carefully study other theories or objectives of sentencing when it comes to punishment in order to determine which ones are acceptable as justifications for punishing the various wrongdoers in specific offences. It serves no purpose to put emphasis on deterrence and abandon the rehabilitative principle or objective if it is thoughtlessly just replaced without very clear guidelines or reasons. There are those who maintain that every different punitive measure taken by the various Courts can be satisfied by a single sentencing scheme, but practically it is difficult to accomplish transformative justice on sentencing by placing emphasis on just one objective. The Courts in Kenya tend to hinge more towards deterrence of an offender than rehabilitation. The common philosophical justifications for the institutional punishments include the following:a.Retribution – punishment is justified merely because the offender has committed a wrong.b.Deterrence – punishment is justified in order to clear the offender from committing further crimes in the future and to deter other members of society in general.c.Rehabilitation – the offender needs to be rehabilitated so that he will behave in a socially acceptable manner.d.Incapacitation – justifies the incarceration of the offender for the protection of society.e.Condemnation – the infliction of punishment upon the guilty person is the symbolic condemnation by society of the individual. 7.The Maximum Prisons facilities in Kenya were designed to hold fewer people than they do at the moment. Apparently, the correctional facilities do not have adequate infrastructure to hold the additional population of inmates hence there is an urgent need to revisit the issue of sentencing regime in Kenya to avoid a catastrophe so that petty offenders should be a subject of non-custodial sentences. It is trite that under the rehabilitative theory judicial discretion has been quite abroad, based on the idea that the punishment should fit the criminal and not the crime. Sentencing should be “individualized” depending upon such factors as the particular circumstances of the crime, the prisoner’s previous criminal record, and the chances that another crime will be committed. Consequently, the Judge or Magistrate must have a great deal of discretion in order to treat offenders on a more individual basis. 8.From the comparative jurisdiction the Court in Mokela vs The State (135/11) [2011] ZASCA 166 the Court held that:“It is well-established the sentencing remains pre-eminently within the discretion of the sentencing Court. This salutary principle implies that the appeal Court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing Court. In my view, this includes the terms and conditions imposed by a sentencing Court on how when the sentence is to be served.” 9.Sentencing in criminal trials is a critical component of the justice system, as it serves as the primary means through which accountability is realized. The efficacy of justice hinges in the perception that the ultimate sentence is fitting and appropriate following a thorough trial and conviction of a defendant. In the contemporary context, an appropriate sentence is one that is predictable and foreseeable. It is only when this predictability is achieved that the discretionary powers exercised in judicial sentencing can be considered equitable. Unfortunately, sentencing practices in many jurisdictions often lack this anticipated predictability, leading to disparities and inconsistencies in the imposition of sentences under similar circumstances by Courts. These discrepancies can foster a negative public perception that justice is not being duly served, posing a formidable challenge to the administration of criminal justice. 10.The judiciary developed the sentencing guidelines so as to ensure fairness and uniformity in our legal system thereby addressing the issues of sentencing disparities. These guidelines serve as a crucial tool in promoting consistence and transparency guaranteeing that similar offences receive comparable punishment irrespective of the individual involve. In my practice of law over the years sentencing is arguably the most crucial phase of a criminal trial through which the offender’s primary objective of accountability is realized. Regrettably even on appeal or review of sentence this tool provides a framework in the sentencing process broadly so and the discretion involved by an appeal’s Court should consider the guide in each individual case. Therefore, before imposing a noncustodial sentence the Court must ensure among other considerations that the interests of the victim, convict and the community are taken into account. The imposition of non-custodial sentence is appropriate in the specific case as an alternative to imprisonment. There must exists necessary mitigating factors, evidence, information, or circumstances justifying the imposition of non-custodial sentence. 11.It is also rightly to state that a trial Court and thereafter an appeals Court exercise discretion following a comprehensive procedural framework sequenced as follows:a.Determining discretionary and non-discretionary punishment.b.Determining offence categoryc.Determining starting point and category ranged.Adjustment based on aggravating and mitigating factorse.Consideration of guilty plea and potential reduction of sentencef.Totality principleg.Compensation, restitution, restoration and ancillary ordersh.Consideration of period spent in custody or remandi.Reason for sentence 12.I have assessed the culpability category of the offence in question around the features of intentional harm, recklessness, knowledge of risk and negligence on the part of the convict. This is an offence of robbery which resulted from unlawful acts of the convict. The victim suffered harm as assessed by the Criminal Officer on 13th June 2008. The Applicant during trial was remorseful for the offence committed against the victim, no dangerous weapon was ever used against the victim while committing the offence. As of now the Applicant has learnt his lessons. There is demonstration of rehabilitation, good character and exemplary conduct while serving sentence. The duration spent in custody while awaiting or undergoing trial is also a pertinent factor while reviewing his custodial sentence. For those reasons the custodial sentence be and is hereby reviewed for the Applicant to benefit to the extent that the balance of the sentence be and is hereby suspended with a condition that while he would be released from prison his conduct of continuous rehabilitation and being a patriotic Kenyan would be monitored by the local administration and any adverse received will be as of necessity to occasion the arrest of the Applicant for him to be placed in prison to complete the suspended sentence. This Court in exercising discretion tampers justice with mercy through individualized sentence discretion by weighing the mitigating factors like remorse and time already served in prison so as to release the Applicant/convict to the home-based rehabilitation. It is for these reasons the Applicant shall carry his bed from prison custody and enjoy freedom indeed unless otherwise lawfully held. I shall add two or more statements to it. First, it is a real freedom not an imaginary or fancied freedom. Too many convicts imagined themselves not to be freed from bondage but I want to assure the Applicant that this is not an imaginary freedom but freedom indeed, a true and real freedom for him to continue undergoing transformation from all kinds of previous bondage. It is so ordered. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026R. NYAKUNDIJUDGE