https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1154

**IN THE COURT OF APPEAL AT KISUMU** **(CORAM: ASIKE-MAKHANDIA, MWITA & ONGAYA, JJA) CRIMINAL APPEAL NO. E001 OF 2023** **BETWEEN** **MICHAEL ONYANGO AWICH APPELLANT** **AND** **THE REPUBLIC RESPONDENT** *(Being an appeal against the sentence from the Judgment of the High Court of Kenya at Siaya (Aburili, J) dated 15th February, 2022* ***in*** ***HCCRC No. 12 of 2020)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **JUDGMENT OF THE COURT** 1. This is an appeal against sentence only. **Michael Onyango Awich,** the appellant, was arraigned on the information of murder contrary to **section 203** as read with **section 204** of the **Penal Code** before the High Court of Kenya at Siaya (Aburil, J) (the trial court). Particulars of the information were that on the night of about 11th and 12th January 2020, at an unknown place within Siaya County, jointly with others not before court, murdered **Charles Oduor Awich,** the deceased. 2. The appellant denied the information and after a trial in which the prosecution called fourteen (14) witnesses, and the appellant gave his defence, he was found guilty of the offence, convicted and sentenced to life imprisonment on 15th February 2022. He was aggrieved and filed a memorandum of appeal challenging both conviction and sentence. His advocate later filed a supplementary memorandum of appeal challenging sentence only. 1. The brief facts of the prosecution’s case are that: on the evening of 11th January 2017, people claiming to be police officers went to the appellant’s home on motorcycles and left with the appellant saying he was going to record a statement at Ndere police station. 2. The deceased’s wife, (PW3) went to the Police Station but did not find the deceased at the station. Police officers at the station informed her that they were not aware of the incident and advised her to report the matter at Siaya police station which she did. The deceased’s body was later recovered from Nzoia river. According to PW 3, there was a dispute in the family over sale of family land, a fact that was confirmed by **Killion Richard Mbeya**, (PW7) cousin to the deceased, **Peter Ochieng’ Keya** (PW9) the Assistant Chief of Nyalgunga Sub- location who had tried to mediate over the dispute that was reported to him by the deceased on 1st March 2016 and confirmed that there was a case in court (***Civil Case No.324 of 2016).*** 3. On 21st February 2020, **PC Aboud Hassan** (PW6) who worked with the Kenya Coast Guard Services at Port Victoria in Busia County, received information about a body that had been spotted at Sango beach. He went to the scene and recovered the body which had several injuries and a missing left hand and took it to the mortuary for preservation. 4. **Dr. Angra Stephen** (PW2) conducted a post mortem on the deceased’s body on 4th March 2020, the body had several injuries, including cut and stab wounds on the midline of the abdomen and abdomen, decapitation of right skin of neck and the left upper limb. The shoulder blade was missing. He concluded that the cause of death was decapitation and severe hemorrhage. 5. PW8 confirmed that she and her husband bought the land from **Jennifer Awich** with the help of **Caleb Awich** but they were not aware of the land dispute, while **Alex Mutua**, PW11, the Land Registrar, Siaya County, testified that indeed **Parcel No**. **Alego/Nyalgunga/491** had a history of disputes and that an erroneous registration had to be cancelled. 6. On his part, **Sgt. John Nzebe**, (PW14), the investigating officer, was detailed to investigate a case where the deceased had been reported missing. The body was however later recovered and a post mortem conducted which revealed murder. From his investigation, the appellant was suspected to have abducted and killed the deceased over a family land dispute. The appellant was arrested and charged with the deceased’s murder. 1. Put on his defence, the appellant gave a sworn testimony that on the material day he was at home, was not aware that the deceased was missing and only heard from the assistant chief (PW9) that the deceased had been arrested and taken to Nderi police station. He denied any disagreements with the deceased over land or committing the offence. 2. The appellant filed a Memorandum of appeal through his counsel, **Ms. Nannungi** dated 12th March 2026 and raised one ground of appeal that the trial court erred in sentencing the appellant to life imprisonment. 3. When this appeal came up for plenary hearing, **Ms.** **Nannungi** learned counsel appeared for the appellant while **Ms**. **Mumo,** learned prosecution counsel was present for the respondent. **Ms**. **Nannungi** confirmed the appeal was against sentence only. Both counsel relied on their written submission entirely. 1. In the written submissions, **Ms. Nannungi** submitted that the trial court erred in stating that the appellant did not deserve mercy for killing his brother despite the appellant being remorseful, thereby failed to give the appellant a second chance. Counsel relied on the decision in ***Manyeso v Republic* [*2023] KECA 827 (KLR)*** where this Court set aside life sentence and substituted it with a sentence of 40 years for the offence of defilement. 1. Counsel further relied on Article 50 (2) (p) (q) and 6 (a), (b) of the Constitution of Kenya and section 333(2) of the Criminal Procedure Code for the proposition that the petitioner is entitled to credit for the period he was in remand during trial. Counsel urged this Court to allow the appeal, set aside the life sentence and substitute it with a term sentence, taking into account the period the appellant was in remand. 2. **Ms**. **Mumu** opposed the Appeal. Counsel submitted that an appellate court will not whimsically interfere with the exercise of discretion by the trial court. Counsel argued that sentence is at the discretion of the trial court and relied on ***Arthur Muya Muriuki v Republic* [*2015] eKLR*** for the proposition that though sentencing is at the discretion of the trial court it should be exercised judiciously and not capriciously and the trial court is guided by the evidence and relevant factors of each case. 1. **Ms. Mumu** argued that the appellant had been charged with murder whose sentence is death, but following the Supreme Court decision in ***Francis Karioko Murwatetu and Another vs Republic* [2017] eKLR** declaring mandatory death sentence unconstitutional, courts have discretion to impose appropriate sentence depending on the circumstances of each case. In that regard, counsel argued that life sentence is lawful and appropriate for murder since the trial court considered the mitigating factors and objectives of sentencing and exercised its discretion appropriately. 1. We have considered this appeal and arguments by counsel for the parties and perused the record. This appeal is against sentence only and therefore our task is to determine whether sentence imposed by the trial court is excessive or appropriate in the circumstances of this case. In doing so, this Court may only refer to the evidence on record in so far as it is relevant to the issue of sentence and its appropriateness but not with a view to determining the soundness of the conviction. 2. **Section 204** of the Penal Code prescribes the death penalty as the maximum penalty for the offence of murder, however, following the Supreme Court decision in ***Francis Karioko Murwatetu and Another v Republic*** (supra) declaring the mandatory nature of death sentence in murder cases unconstitutional, courts have discretion to impose appropriate sentence taking into account proportionality and circumstances of each case. 3. The law on sentence is settled. Sentence being a matter of discretion by the trial court, an appellate court will not easily interfere with the sentence imposed by a trial court unless the sentence is manifestly excessive in the circumstances of the case, or the trial court overlooked some material factor, or took into account some wrong material factor, or acted on a wrong principle. Even where 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. (See ***Ogolla s/o Owuor v Republic,*** [1954] EACA 270); ***Bernard Kimani Gacheru v. Republic*** [2002] eKLR). 1. The appellant was convicted for the murder of his brother because of what was said to be a family land dispute and sentenced to life imprisonment. While passing sentence, the trial court remarked that the appellant did not say anything despite killing his brother. However, the record shows otherwise. The appellant mitigated through his counsel that he is a middle-aged man with 6 children whose where abouts was unknown, he had no particular source of income and was remorseful for what happened. 2. We are aware that sentencing must be exercised judiciously, and an appellate court should not interfere with the discretion of the trial court. In the appellant’s case, we do not see any aggravating circumstances attributable to the appellant. The trial court took into account irrelevant matters such as alleged poor behaviour in the community, being an introvert, bad relationship with his immediate family and that the local community and family members do not want to see him, which was not supported by admissible evidence on record. The trial court did not also take into account the appellant’s mitigation that he had young children whose where abouts was unknown, though acknowledging this fact. 3. Taking into account the circumstances of this appeal, the principle of proportionality, the objectives of sentencing as well as the appellant’s mitigation and the lesson he has learnt, the life sentence imposed by the trial court is excessive. We consider a sentence of fifteen (15) years appropriate. 4. In the result, the appeal on sentence succeeds and is allowed. The life sentence imposed against the appellant is set aside and is substituted with a sentence of fifteen (15) years. The appellant shall serve a sentence of fifteen (15) years imprisonment to run from 21st July 2020, the date the appellant first appeared in court. **Dated and delivered at Kisumu this 12th day of June, 2026.** **ASIKE-MAKHANDIA** **……………….……… JUDGE OF APPEAL** **E.C. MWITA** **……………..….……… JUDGE OF APPEAL** **B. ONGAYA** **……………..…….…… JUDGE OF APPEAL** **I certify that this is a true copy of original.** **DEPUTY REGISTRAR.**