https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6772

Omulama v Republic (Criminal Miscellaneous Application E021 of 2026) [2026] KEHC 6772 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 6772 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E021 of 2026 RN Nyakundi, J May 19, 2026 IN THE MATTER OF HCCRC. NO. E004 OF 2022 AT VIHIGA AND IN THE MATTER OF SECTION 323, 216, 329 CRIMINAL PROCEDURE CODE AND IN THE MATTERS OF ARTICLE 22, 23(1) (3), 50(2)(P), 50(2)(q), 25(c),159(1) a,b,d, 165(3)(a) CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF PARAGRAPH 4.8, 3.2.1, 3.2.2, 3.2.3, 3.3, 3.3.1, 3.3.5 SENTENCING POLICY GUIDELINES (SPG'S) REVISED 2023. SECTION 35 OF THE PENAL CODE AND IN THE MATTERS OF MURDER CASE C/S 203 AS READ WITH SECTION 204 OF THE PENAL CODE Between radon Andanje Omulama Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated on 12th March 2026, the Applicant seeks the following orders:a.May this Court be pleased to hear and determine this application.b.May this Court be pleased under its discretion to reduce the Applicant's sentence to a lesser severe sentence.c.May this Court be pleased to make a finding that the appellant's sentence should run from the date of his arrestd.Spent.e.May this Court waive any cost involved and see to it that the Applicant shall be present at the hearing thereof. 2.Based on the grounds:a.Rehabilitation, reformation, social re-adaptation and profusely remorsefulness of the Applicant.b.Old age and health status of the Applicant.c.He is an old man of 76 years and of weak health.d.The Applicant is a pauper and in prison.e.More grounds in the sworn affidavit and others to be at the hearing thereof. 3.The application is supported by the annexed affidavit of Radon Andanje Omulama who deponed as follows:a.That, I am an adult male of sound mind hence competent to make oath and swear this affidavit.b.That, I was sentenced to serve 15 years in an offence of murder c/s 203 as read with 204 of the penal code Vide HCCRC NO. E004 OF 2022 At Vihigac.That, I am stepping before this seat of justice with this humble application requesting this Hon. Court to consider complete leniency, mercy and grace rather than condemnation and reduce, suspend, unconditionally absolute discharge, or give a non-custodial sentence to the Applicant as it may deem fit.d.That, the Applicant will suffer irreparable loss if orders sought will not be granted. Decision 4.The Applicant in this case upon a full trial was sentenced to 15 years imprisonment, he is aggrieved with sentence and has filed this petition seeking a review of the verdict with that of a lesser term imprisonment. 5.In delving to this question I bear in mind the principles and objectives of sentencing in a criminal offence which include inter alia: Retribution: to satisfy the feeling of vengeance in the mind of victim and the large number of people who share the agony of victim Prevention: to take away from the offender the power of offending Deterrence: to make the offender afraid of consequences, if the similar act is repeated (intimidation) and to create awe in the minds of the persons who are disposed to commit similar offences. Reformation: to remove the desire of punishment from the mind of wrongdoer. 6.Concerning the sentence under review the Court has also to take into account the elucidative principles in the case of Bernard Gacheru vs Republic [2002] eKLR the Court held 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, the 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 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.” 7.It is an elementary proposition in law when it comes to the criminal justice system and an accused person has been found guilty, duly convicted any such sentence imposed must be proportionate to the gravity and nature of the crime. These were the principles articulated in the persuasive case of Mohamed Hanif vs. Emperor AIR 1942 Bom 215. That:In the first place, it is necessary to pass a sentence upon him which will make him realise that a life of crime becomes increasingly hard, and does not pay. In the second place, the sentence should serve as a warning to others who may be thinking of adopting a criminal career. In the third place, the public must be protected against people was show that they are going to ignore the rules framed for the protection of society. 8.In dealing with adjudication of criminal cases involving our citizens and other persons alike I have come to appreciate the conceptual framework of crime as prescribed by the Court in Sato vs. State of U.P (1979) 2SCC628 that crime is like disease, and correction, not cruelty, has dominance in the sentencing calculus. That may be the reason why the Supreme Court in Mohammed Giasuddin vs. Andhra Pradesh (1977) 3SCC287 made the following observations:If every saint has a past, every sinner has a future and it is the role of law to remind both of this. The Indian legal genius of old has made a healthy contribution to the world treasury of criminology. The drawback of our criminal process is that often they are built on the bricks of impressionist opinions and dated values, ignoring empirical studies and deeper researches. Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals-mental and moral-is the key to the pathology of delinquency and the therapeutic role of 'punishment' The whole man is a healthy man and every man is born good. Criminality is a curable deviance. The morality of the law may vary, but is real. The basic goodness of all human beings is a spiritual axiom, a fall-out of the advaita of cosmic creation and the spring of correctional thought in criminology. 9.Sometime I hear words justice to the victim, justice to the society when Courts impose what is considered appropriate sentence against an offender in the eyes of the victim or the public. This maybe in line with the objective of sentence described as deterrence and retribution. It was further observed by the Court in Hazara Singh vs. Raj Kumar (2013) 9 SCC 516. Thus:“The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the judges in arriving at a fair and impartial verdict. This Court further observed that the cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.” 10.A proper sentence is a compromise of many factors. In section 329 of the CPC provides the Court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. 11.In Kenyan law a Court can review a sentence or judgment on errors of facts or law, or based on new evidence. The threshold requires proving an error is apparent in the face of the record or the Applicant demonstrating that the new evidence is crucial, admissible and could not have been found earlier even with due diligence. This is what the Court addressed in the following cases and applies mutatis mutandis to the facts of this case: Tom Martins Kibisu v. Republic [2022] eKLR: The Supreme Court set the threshold for "new and compelling evidence." It defined it as admissible evidence of high probative value that was unavailable at trial despite due diligence, and which would probably have led to a different verdict or altered sentence. Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others (2014) eKLR: The Supreme Court highlighted that an Applicant seeking review based on newly discovered evidence must strictly prove they exercised due diligence and that the evidence was not previously in their possession. Hon. Mike Mbuvi Sonko v. IEBC & 3 Others [2022] eKLR: The Court established that additional evidence cannot be used merely to fill gaps, plug loopholes, or fix a weak case that was already litigated. 12.From the analysis and evaluation of the evidence there is no error apparent on the face of the record which can be corrected by this Court. The resultant effect is to have the application dismissed as the remedy sought is not even capable of being granted under Section 333(2) of the CPC. The motion is lost. DATED AND DELIVERED AT VIHIGA THIS 19TH DAY OF MAY 2026.........................................R. NYAKUNDIJUDGE