Sakwa v Republic (Criminal Petition E015 of 2025) [2026] KEHC 10245 (KLR) (16 June 2026) (Judgment)

REPUBLIC OF KENYA **JURISDICTION:** IN THE HIGH COURT, BUNGOMA **FILE NUMBER:** CRIMINAL PETITION E015/2025 **BETWEEN:** REPUBLIC & DAVID K. SAKWA **CORAM:** R.K. ONDIEKI- J **HEARD:** 20th MAY, 2026 **DELIVERED**: 16th JUNE, 2026. Citations: JUDGEMENT OF THE COURT: 1. In the Notice of Motion dated 28th July 2025, the Appellant has invoked Article 50(2)(q) and Article 165(13)(a)(d) of the Constitution of Kenya 2010, the sentencing policy guidelines of 2016 and High Practice and procedure Rules 2013 and seeks one prayer; that this honourable be pleased to reduce his sentence to a lessor term. 2. The application is based on the grounds on the body of the application as well as those set out in the supporting affidavit. 1. The appellant was arraigned and charged with the offence of manslaughter, convicted and sentenced to ten (10) years imprisonment. 2. The Appellant has not proffered any appeal in any court in Kenya. 3. He is aged 41 years and the six years he has served has taught him life changing skills besides, he has a young family and with the demise of his wife, he seeks a second chance to enable him take care of the children. 4. The appellant has acquired training in different fields including bible related certificates, skills in carpentry and joinery and he undertakes to be a good ambassador of peace and promote peaceful co-existence among the members of society. Annexed to the application are copies of relevant certificates. 5. The deceased’s family as well as the appellant’s family have reconciled and he has been forgiven by the deceased’s family as evidenced by an agreement between two families. 3. Parties agreed to dispose of the application by written submissions. Analysis and determination: 1. **The Court of Appeal, in *Bernard Kimani Gacheru Vs. Republic [2002] eKLR* restated that, it is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.** 2. **In *Mokela Vs. The State (135/11) [2011] ZASCA 166,* the Supreme Court of South Africa held that it is well-established that 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 or when the sentence is to be served.** 3. **In *Shadrack Kipkoech Kogo Vs R. Eldoret Criminal Appeal No.253 of 2003* the Court of Appeal stated that sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also *Sayeka Vs R. (1989 KLR 306*).** 4. **The East African Court of Appeal in *Opoya Vs. Uganda (1967) E.A 752 at page 754 paragraph B* explained that 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.** 5. **To my understanding therefore, sentencing comes with it diverse facets for consideration, bearing in mind that it is a discretion of the sentencing court. As repeatedly held by the superior courts, the appellate court must tip toe cautiously in interfering with sentence, as it did not have the opportunity to hear and assess the demeanour of the appellant. As it were therefore, the appellate court is at large, as far as the credibility of the mitigations by the appellant is concerned.** 6. **Flowing from the above cited decision, it is a well-established principle that sentencing must be determined based on legally established principles. In Kenya, sentencing is governed by the Judiciary Sentencing Policy Guidelines, 2016 which sets out the objectives of sentencing under paragraph 4.1 at page 15 that sentences are imposed to meet the following objectives:** 1. **Retribution: To punish the offender for his/her criminal conduct in a just manner.** 2. **Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.** 3. **Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.** 4. **Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.** 5. **Community protection: To protect the community by incapacitating the offender.** 6. **Denunciation: To communicate the community’s condemnation of the criminal conduct.** 7. **The principle that emerges from the above text is that, in passing a sentence, a court of law must bear the above objectives in mind and ensure that any sentence imposed meets any or all of the above objectives. Courts should, at the same time, consider mitigating circumstances and balance the rights of a convicted person with those of the victim alongside other mitigating factors. Some of these mitigating factors are: whether the convicted person is a first offender, whether they pleaded guilty and whether they are remorseful. (See The Sentencing Guidelines set out by the Supreme Court of Kenya in the case of**[***Francis Karioko Muruatetu & Another vs. Republic***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kesc/2021/31)***, Petition No. 15 of 2015*).** 8. The appellant has set out his resume for the past six he has been in custody. I also note that the two families have entered an agreement that the past is gone and have realised that forgiveness is the centre piece of co-existence. I also note that the fact the wife of the appellant has passed on, a wrong and a wrong will not sum up to a right. Additionally, I know that there is no minimum sentence is provided by manslaughter. 9. In disposal; 1. I allow the Notice of Motion dated 25th July, 2025. 2. The sentence is reduced to the sentence already served. 3. The appellant to be released and set free immediately unless or otherwise lawfully held back. 10. Delivered in the open court this 16th June, 2026 in the presence of Brian court assistant, Matere for ODPP and the appellant and his counsel.