https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12599

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CRIMINAL PETITION NO E012B OF 2023** **HILLARY ODARI………………….………………………………………PETITIONER** **VERSUS** **REPUBLIC…………………………………………………………………RESPONDENT** **SENTENCE** **INTRODUCTION** 1. In its decision that was delivered on 25th May 2026, this court relied on the case of **Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment)** wherein this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right. 2. Pursuant to that Ruling, this court directed the Petitioner to provide documents to support his mitigation and the Probation Office to prepare and file a Pre-Sentence Report by 24th July 2026. The court fixed the matter for mitigation and sentencing on 30th July 2026. **LEGAL ANALYSIS** 1. According to the Pre-Sentence Report of J. Sahani, Probation Officer, Vihiga dated 28th July 2026, the Petitioner was thirty-eight (38) years old and had spent a total of fourteen (14) years in custody, comprising thirteen (13) years following conviction and one (1) year in remand. The Petitioner was born in August 1988. He was raised by his mother after his parents separated during his childhood and grew up under challenging family circumstances characterised by inadequate parental supervision due to his mother's efforts to provide for the family. 2. He dropped out of school while in Class Six (6) after falling under negative peer influence and later became involved in criminal behaviour. The Report further indicated that although the Petitioner had no previous criminal convictions, he had previously been arrested on allegations of theft but was released without prosecution. During his incarceration, he was said to have maintained exemplary conduct, accepted responsibility for the offence, expressed genuine remorse, and demonstrated significant rehabilitation through vocational training and positive leadership within the prison. 3. His family expressed support for his possible release. The Report also showed that his mother and siblings had maintained consistent emotional and financial support throughout his incarceration despite financial and distance constraints following his transfer to Manyani Maximum Prison. They continued to communicate with him through the Prison Welfare Office and remained willing to facilitate his reintegration into society. The Report further indicated that he enjoyed a stable family support system that was considered favourable to his eventual reintegration into the community. 4. It was not possible to obtain a Victim Impact Statement. According to the Report, the victim, Wycliffe Kiplimo, died during the robbery incident. The social inquiry established that the victim's father had earlier died in a road accident while his mother subsequently died following an illness. Despite reasonable efforts by the Probation Office to trace the deceased's extended family members, none could be located. Consequently, the Report did not capture the views or sentiments of the victim's family regarding the Petitioner’s Petition for resentencing. 5. The local administration did not oppose the Petitioner’s Petition for resentencing. The Assistant Chief of Chebilat Sub-location, who was familiar with both the Petitioner and the deceased, expressed the view that the Petitioner was relatively young at the time of the offence and that immaturity may have contributed to his actions. The Assistant Chief of Mudete Sub-location similarly observed that the Petitioner had no known history of misconduct prior to the offence and recommended that, if granted a definite custodial sentence, he should serve it to completion before returning to settle at his ancestral home. 6. The Acting Chief of Mukhalakhala Location also raised no objection to the Petition, provided the court was satisfied that the Petitioner had genuinely reformed. Overall, the local administration supported the Petitioner’s eventual reintegration while emphasising the seriousness of the offence and the need to take his demonstrated rehabilitation into account. 7. According to the Recommendation by the Officer in Charge, Manyani Maximum Prison, the Petitioner had exhibited exemplary conduct throughout his thirteen (13) years of imprisonment. The prison authorities reported that he had consistently complied with prison rules and regulations, had never been subjected to disciplinary proceedings, and had demonstrated discipline, responsibility and respect towards both prison staff and fellow inmates. Owing to his exemplary conduct, he had been entrusted with leadership responsibilities as the In-charge of a prison ward, which he discharged diligently. The authorities further noted that he had actively participated in rehabilitation and vocational training programmes and had successfully attained Grade III and Grade II Certificates in General Fitting in 2017 and 2018 respectively, and a Certificate in Resource Oriented Development Initiatives (RODI). 8. The Probation Officer recommended that, having regard to the Petitioner's demonstrated rehabilitation, remorse, stable family support, positive prison record, and the views of the local administration, the court may consider imposing a definite custodial sentence if satisfied that the objectives of sentencing, including punishment, deterrence, accountability, rehabilitation and the interests of justice, had been sufficiently served. 9. He did not orally submit in court opting to rely on his Written Submissions that he had filed in support of his Notice of Motion application dated 19th October 2023 on 14t November 2023. The Respondent did not participate at the mitigation and sentencing stage. 10. Notably, sentencing is one of the most intricate aspects of trial. Indeed, a trial does not end unless a sentence has been meted out. The principle of sentencing is fairness, justice, proportionality, and commitment to public safety. The main objectives of sentencing are retribution, incapacitation, deterrence, rehabilitation, and reparation. The Sentencing Policy Guidelines in Kenya have added community protection and denunciation as sentencing objectives. The objectives are not mutually exclusive and can overlap. 11. It was also important that the sentence communicate to the community, condemnation of his criminal act. The sentence would indirectly send a strong signal to deter would-be offenders from committing such an offence. The sentence also had to be one that was hinged on retributive justice for the secondary victims. 12. If the court did not take into account the three (3) objectives of deterrence, retribution, and denunciation of his offence at the time of sentencing him, chances of the Subject being reintegrated into the society would be next to impossible as there were possibilities of being harmed. 13. It was evident from the information obtained during the Social Inquiry by the Probation Office that the Petitioner was about twenty-four (24) years old when he committed the offence in 2012. Although the offence resulted in the tragic loss of life, the Social Inquiry established that he committed it while still a young adult after falling under negative peer influence following school dropout and inadequate parental supervision. He had since served approximately fourteen (14) years in custody, comprising one (1) year in remand and thirteen (13) years after conviction, during which period he had demonstrated sustained rehabilitation and exemplary conduct. 14. This court was satisfied that the rehabilitative objective of sentencing had substantially been achieved. The Petitioner had accepted responsibility for the offence, expressed genuine remorse, acquired vocational skills, maintained exemplary discipline throughout his incarceration, and demonstrated significant personal reform that would facilitate his reintegration into society. 15. Having considered the facts of this case, the Petitioner's mitigation, the Pre-Sentence Report and the Recommendation Letter by the Officer in Charge, Manyani Maximum Prison, this court came to the firm conclusion that substituting the death sentence with a determinate term of thirty (30) years’ imprisonment would be appropriate. 16. As the Petitioner's sentence was now determinate, this court was mandated to consider the period that he spent in remand while his trial was ongoing in line with Section 333(2) of the Criminal Procedure Code, Cap 75 (Laws of Kenya). 17. The said Section 333(2) of the Criminal Procedure Code provides that: - **“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code** **Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody”** (emphasis court). 1. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that: - **“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: …** **(ix) Time already spent in prison by the convict…”** 1. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in **Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR**. 2. This court noted that the Charge Sheet and the lower court record were not availed to this court. It was clear from the Petition of Review dated 19th October 2023 and filed on 14th November 2023 that the Petitioner was arrested on 31st March 2012 and was sentenced on 5th April 2013. The Pre-Sentence Report confirmed this period. To avoid prolonging this matter further, this court found and held that this was a period it could grant to finalise this matter. **DISPOSITION** 1. Accordingly, the upshot of this court's decision was that although the Petitioner's conviction remained undisturbed as it was safe, his sentence of death was hereby set aside and substituted with a sentence of thirty (30) years' imprisonment to run from the date he was first remanded in custody. 2. It is hereby directed that the period the Petitioner spent in remand between 31st March 2012 and 4th April 2013 be taken into account in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) when computing his sentence. 3. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **30th** day of **July** 2026 **J. KAMAU** **JUDGE**