https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1159

Olik v Republic (Criminal Appeal E287 of 2022) [2026] KECA 1159 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1159 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E287 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between George Omwombo Olik Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Siaya (Aburili, J) dated 10th May, 2022 in HCCRC No. E012 of 2021 Criminal Case 12 of 2021 ) Judgment 1.Before us is a first appeal by George Omwombo Olik, “the appellant”, initially against both the conviction and sentence of 35 years’ imprisonment on the information charging him with murder imposed by the High Court of Kenya at Siaya. The appellant together with his brother, Astariko Oduor Olik, “the co-accused”, were arraigned in court on the said information whose particulars were that on 18th May 2021, at Ramba Pundo village, Karapul Sub-location in Siaya Sub-County, the appellant and co-accused jointly with others not before court, murdered Emmanuel Ben Juma, “the deceased”. When called upon to plead, they entered a plea of not guilty, thereby setting in motion the prosecution’s case in which it called thirteen witnesses. 2.From the record, the prosecution case was that on 17th May 2021, thieves broke into the house of the co-accused's son and stole therefrom a gas cylinder, amplifier and a cellular phone. Three suspects who included the deceased were rounded up by members of the public and subjected to mob justice or is it injustice, to disclose the whereabouts of the stolen items. Indeed, the deceased, in the process led them to the recovery of the stolen cell phone. Among those in the forefront in carrying out the attacks on the deceased were the appellant the and co-accused. The deceased unfortunately lost his life. It was on this basis that the appellant and co- accused were arrested and charged as aforesaid. However, at the stage of case to answer, the appellant’s co-accused was acquitted under section 309 of the Criminal Procedure Code. 3.Put on his defence, the appellant in a sworn statement denied participation in the killing, contending that though he was present in the homestead where the death occurred, he did not assault the deceased. 4.In its judgment, the trial court concluded that the prosecution had proved the information against the appellant to the required standard. It accordingly convicted him of the information and sentenced him, to 35 years’ imprisonment, appreciating the brutality of the act, the loss of life, and the need for deterrence against mob justice. 5.Aggrieved by the conviction and sentence aforesaid, the appellant lodged the instant appeal on various grounds. However, it is not necessary to set them out in view of the concession of the appeal by the respondent. 6.The appeal was heard by way of written submissions with limited oral highlights. When called out, Ms. Mawinda, learned counsel appeared for the appellant while Ms. Mumu, learned prosecution counsel represented the respondent. After engagement with the court, on whether on the facts as presented by the prosecution merited a conviction for the offence of murder, counsel for the respondent graciously conceded the appeal on the conviction for the offence of murder. She took the view that the evidence presented was in consonance with the offence of manslaughter as opposed to murder. Consequently, she agreed to the substitution of the information of murder with that of manslaughter. Thereafter parties addressed the court solely on sentence. 7.Counsel for the appellant argued that the sentence of 35 years imprisonment imposed was manifestly harsh and excessive in the circumstances. Counsel referred the court to Jacob Mwithalie & 2 others v Republic [2020] KEHC 3931 (KLR) and Francis Muruatetu & Another v Republic [2017] eKLR, that underscored the importance of rehabilitation and proportionality in sentencing. It was further argued that the trial court overlooked the principles in Sayeko v Republic [1989] KLR 306, which caution against imposing sentences that are manifestly harsh and excessive. In light of the above sentiments, and noting the concession to the appeal by the respondent, the appellant’s counsel pressed for a reasonable but lesser custodial sentence. 8.In opposition, counsel for the respondent emphasized that the manner in which the deceased was killed was brutal, and that the appellant was armed with a metal rod which he repeatedly used to strike the deceased on the head, thereby causing the fatal injuries. Counsel urged the court to maintain the sentence of 35 years’ imprisonment, contending that the punishment was commensurate with the gravity of the offence and served the objectives of deterrence, particularly in cases of mob injustice. 9.We have carefully weighed the brutality of the act against the mitigating circumstances advanced by the appellant. While the deceased lost his life in a violent manner, the evidence does not disclose any element of premeditation or deliberate intent to kill. The circumstances point to a spontaneous episode of mob justice rather than a planned attack. The appellant was a first offender, expressed remorse, tendered an apology to the family of the deceased, and was the sole breadwinner of his three children. 10.Balancing deterrence with rehabilitation, and considering the absence of malice aforethought or clear intent to kill, we set aside the sentence of 35 years and substitute therefor with a custodial sentence of 15 years’ imprisonment, to run from the date of first arraignment in the trial court on 7th June 2021. 11.In the result, we make the following orders in this appeal.1.The appeal on conviction and sentence for the offence of murder is allowed.2.In lieu thereof it is substituted with a conviction for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.3.The appellant shall serve a sentence of fifteen (15) years imprisonment to run from 7th June 2021, the date of his arraignment in court. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA…………………………………JUDGE OF APPEALE. C. MWITA…………………………………JUDGE OF APPEALB. ONGAYA…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR