https://new.kenyalaw.org/akn/ke/judgment/keca/2026/933

Gekonge v Republic (Criminal Appeal 145 of 2020) [2026] KECA 933 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 933 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal 145 of 2020 P Nyamweya, LA Achode & JM Mativo, JJA May 15, 2026 Between Kevin Ogato Gekonge Appellant and The Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Nyamira (E.N. Maina) dated 17th October 2019, in HCCR CASE NO. 12 OF 2016) Judgment 1.Kevin Ogato Gekonge the appellant herein, is through this appeal, expressing his dissatisfaction with the sentence of 30 years’ imprisonment, imposed upon him by E.N Maina J. on 17th October 2019, pursuant to his trial and conviction for the offence of murder in the High Court at Nyamira.. The particulars of the information were that on the night of 26th July 2016, at Mobamba Village, in Masaba North District within Nyamira County, he murdered Samuel Magana Nyamumba. 2.A summary of the case against the appellant as stated by five prosecution witnesses was that the appellant, who was the deceased’s grandson, , went to the deceased’s home on the evening of 26th July 2016, and as he was leaving, he picked a mobile phone belonging to Robina Magana, (PW2), his grandmother, from the table. The deceased followed him to his house to retrieve the phone and never returned. The next morning Mokaya Omaiyo Peter (PW3), the Chief of East Kitutu Location, came to the deceased’s home to enquire about his whereabouts. 3.PW3 had gone to the home following a call he received from Mr. Toya of Keroka Police Station during the night, informing him that Keroka police were holding a young man who had confessed to killing someone and the body was in his house. Mr. Toya requested PW3 to go to the home of one Samuel Magana Nyamumba and confirm whether he was alive. PW3 and PW2 went with police officers to the appellant’s house where they found the deceased’s body lying on the floor, wrapped in blankets and covered in blood. The officers recovered a Somali sword from the house. James Oyugi Magana, PW4, a son of the deceased was with PW2 and PW3 when they made the grisly finding in the appellant’s house. 4.PC Peter Malimali (PW5), the Investigating Officer, visited the scene of crime and met PW3 and the family members of the deceased. He saw the body of the deceased lying in a pool of blood and he recovered the machete which had been used to murder the deceased. He escorted the body of the deceased to Gucha Mortuary in Keroka, and recorded statements from family members. He testified that the appellant voluntarily presented himself to the police at Keroka in a blood-stained shirt. Both the shirt and the machete were submitted to the Government Chemist for analysis and the Government Chemist’s report produced in evidence, established that the blood on the machete and the appellant’s shirt matched that of the deceased. 5.Dr. Charles Oganji Ogenga(PW1), a Medical Officer in- charge of Keroka District Hospital, produced the post- mortem report on behalf of Dr. Matingai with whose handwriting and signature he was familiar. The report showed that the deceased had sustained cuts on the frontal region of the scalp; puncture wounds on the neck; cuts on the right hand; lacerations on the spinal cord; and, puncture wounds on the right cervical region. There were bloodstains visible on the scalp, face, and palms. The injuries indicated that they were inflicted by a sharp, pointed object. The report concluded that the cause of death was cardiopulmonary arrest, secondary to severe injuries to the cervical spinal cord, resulting from a penetrating injury and the manner of death was homicide. 6.In his sworn defence, the appellant stated that on 26th July 2016, two intruders attacked him as he slept in his house and cut him with a machete in his left armpit and on the right hand. In self-defence, he pushed one of the attackers and ran out, shouting. He ran to the Chief’s camp but was advised to go to the police. Upon arrival at the police station he was arrested and placed in a cell. The following day, the Officer Commanding Station, (OCS), informed him that there was a dead person in his house. The appellant apologized and stated that he did not intend to cause such harm. He then paid Kshs. 50,000 as instructed by the OCS to “end the matter.” He added that he had an existing conflict with the deceased over some trees that the deceased’s son had sold, and for which the deceased demanded more money and threatened him with dire consequences if he did not pay. 7.Upon conviction and sentence, the appellant filed a Memorandum of Appeal dated 15th April 2025 seeking relief under Articles 165 (3) (a) and (b), 159 (2) (a) and (b), and 22 (4) of the Constitution. 8.M/S Ariho Ngundu Advocate filed submissions dated 15th April 2025, on behalf of the appellant. In reference to Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, counsel submitted that in the amended guidelines for sentencing upon conviction for murder, the court is required to consider factors such as the age of the offender; status as a first-time offender; plea of guilt; character and prior record; commission of the offence in the context of gender-based violence; presence of remorse; potential for reform; social re-integration of the offender; and any other factor the court may deem relevant. 9.Counsel relied on the decision in Cr Appeal No. 12 of 2021: Julius Kitsao Manyeso v Republic, to urge that the imposition of mandatory life sentences is unjustifiable, discriminatory, unfair, and repugnant to the principles of equality before the law under Article 27 of the Constitution. He argued that indeterminate life sentences without any prospect of release or review, constitute degrading and inhuman punishment. Further, that the appellant was a first-time offender, was remorseful, and had received positive recommendation from the prison authorities. 10.Counsel posited that the principle of proportionality in sentencing is applicable in this instance and the punishment ought to be commensurate with the gravity of the offence, the harm caused, and the offender’s degree of culpability. That he is the family’s breadwinner and has dependent siblings. He referred to the case of Republic v Samson Kalamai Lebene, [2019] eKLR to urge that the High Court sentenced a husband who had killed his wife following a domestic quarrel to five years’ imprisonment, taking into account the interests of justice, the rehabilitation and deterrence of the accused, and the need to address the concerns of the deceased’s family. 11.In addition, the appellant relied on Republic v Ezekiel Lokatukon [2021] eKLR, where the court considered the fact that the accused was a first-time offender in determining the sentence, and sentenced him to a total of seven years, comprising of five years’ in custody and two years’ non-custodial sentence. The appellant prayed that, in light of the principles established in Muruatetu & Another v Republic (supra), his thirty years sentence be set aside, and in its place, a fifteen-year term be imposed. This is considering that following the commission of the offence, he voluntarily presented himself to the police upon realizing the gravity of his actions. 12.The appeal was opposed by the submissions dated 30th April 2025, expressed to be filed by the Office of the Director of Public Prosecutions at Keroka, on behalf of the respondent, without disclosing the name of the State Counsel. The respondent faulted the appellant’s contention that his sentence amounted to a life sentence and was harsh, stating that it is misplaced as a thirty years’ sentence does not constitute a life sentence. The respondent argued that, given the nature of the offence, the sentence was neither unjustifiable, discriminatory, unfair, nor repugnant to the principles of equality under Article 27 and that the Appellant was afforded a fair and just trial, leading to his conviction and subsequent sentencing. 13.The Respondent argued that Muruatetu & Another v Republic (supra), on which the appellant relied, primarily addressed the constitutionality of the mandatory death penalty for the offence of murder, which deprived courts of their sentencing discretion and violated the principle of judicial independence. The respondent asserted that in the present case, the trial court exercised its sentencing discretion in accordance with the principles of judicial independence, which justified the imposition of thirty years of prison sentence on the appellant. That the appellant’s appeal would have merit only if he had been sentenced to death, otherwise it should be dismissed. 14.The appeal came before the Court for plenary hearing via the virtual platform on 4th September 2025. The appellant was present at Kisumu Prison, was represented by Mr. Ariho learned counsel, while Mr. Mwangi the learned Principal Prosecuting Counsel was present for the respondent. Both counsel adopt their submissions opted to fully rely on them. 15.This being a first appeal, the Court has jurisdiction to consider the appeal on both questions of fact and the law. The appeal is on sentence only, and it is settled that sentencing is a discretionary function of the trial court. An appellate court will only interfere where the sentence is: illegal; founded on erroneous principles; where relevant factors were ignored; irrelevant factors were considered; or, where the sentence is manifestly excessive. This position has been consistently affirmed in the decisions of the courts. (See the decision of the predecessor of the Court of Appeal in Ogolla s/o Owuor v Republic, [1954] EACA 270. 16.This Court reiterated this position in Bernard Kimani Gacheru vs. Republic (2002) eKLR as follows:“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 any one of the matters already stated is shown to exist.” 17.The Supreme Court in Muruatetu & Another v Republic (supra), affirmed the principle of judicial discretion in sentencing, stating that courts must exercise their sentencing powers in accordance with the Constitution and relevant legal principles. 18.The appellant’s appeal is premised on the assertion that he was sentenced to life imprisonment. This is a misapprehension of the sentence passed by the trial court. It is evident from the record that the appellant was sentenced to thirty years’ imprisonment, with the period spent in remand during trial duly taken into account. The appellant’s challenge to the sentence is therefore, fundamentally defective, being based on an incorrect statement of the sentence actually imposed. An appellate court is bound by the record of the trial court and not by erroneous assertions made in a memorandum of appeal. 19.As to whether the sentence of 30 years’ imprisonment was justified, it should be noted that the statutory penalty for murder is the death sentence as provided under Section 204 of the Penal Code. This means that whereas the section does not provide a minimum sentence, it provides a maximum sentence of death. In the exercise of her discretion however, the trial Judge imposed a sentence of thirty years’ imprisonment. 20.In the circumstances, we find that the sentence imposed was lawful and properly grounded and the appellant has not established any grounds upon which this Court can interfere with his sentence. Consequently, we find that the appeal lacks merit and is dismissed. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026P. NYAMWEYA.....................................JUDGE OF APPEALL. ACHODE.....................................JUDGE OF APPEALJ. MATIVO.....................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR