https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10882

Republic v Akoyo & another (Criminal Case 51 of 2016) [2026] KEHC 10882 (KLR) (17 July 2026) (Sentence) Neutral citation: [2026] KEHC 10882 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Case 51 of 2016 JRA Wananda, J July 17, 2026 Between Republic Prosecutor and Johnstone Akoyo 1st Accused Daniel Kipruto 2nd Accused Sentence 1.This 9 years old criminal case, among the oldest in this station, is finally coming to an end. Without pointing fingers at any agency or looking for excuses or scapegoating, all I will say is that this extent of delay is unacceptable and a serious indictment of our general justice system. While the family of the deceased has been made to wait for this long for justice for their slain kin, the accused persons have also, on their part, been in custody for all the 9 years uncertain of their fate. Both sides have thus obviously suffered long and unbearable pain and agony in the waiting, which situation, hopefully, will not keep recurring in our justice system. 2.Back to the matter, the accused persons were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 3/7/2016, at Mafuta farm in Eldoret West Sub-County in Uasin Gishu County, they jointly murdered one Naomi Muthoni Kamau. By the Judgment rendered by this Court on 18/07/2025 after full trial, both accused persons were found guilty and/or convicted. 3.Regarding sentence, I directed that respective Pre-Sentence Reports be filed in respect to the accused persons, which was done. The Reports, both dated 14/10/2025, and prepared by the Probation and Aftercare Service, Uasin Gishu County. 4.Mr. Kenei Advocate, Counsel for the accused persons, in mitigating on behalf of the accused, urged that the Supreme Court Muruatetu case guided that Courts now have discretion in sentencing. He prayed for leniency urging that the accused are still relatively young both aged 36 years presently meaning that they were 27 years old at the time of the offence, that they were arrested in 2016, 9 years ago, and have been in custody since then. He submitted that their parents, now aged, depended on them, and that they come from humble backgrounds. He also urged that the 2nd accused has a 10 years old child who depended on him, that the child was 1 year old when the 2nd accused was arrested and thus has never interacted with the father, and that a long sentence will deny the child that opportunity. He submitted that the accused are remorseful, their families are ready and willing to receive them back, and that every human being deserves a second chance. In conclusion, he prayed that the period spent by the accused in remand custody be considered. 5.Prosecution Counsel Ms. Muriithi, on her part, submitted that although there are no criminal records for the accused, the Pre-Sentence Report reveals that the 2nd accused had previously been incarcerated for an assault. She then described the killing as against a vulnerable member of the community, it was heinous having been by strangulation, and was unprovoked. He also doubted the accused person’s alleged remorse observing that the Report indicates that they are still denying their involvement in the offence. She submitted further that the family of the deceased is still affected, and prayed for punishment that depicts the crime. In the end, she, too, confirmed that the accused have been in custody throughout the trial. Determination 6.The applicable law on sentence for the offence of murder is Section 204 of the Penal Code which stipulates that “any person convicted of murder shall be sentenced to death.” 7.It is now however generally agreed that in spite of the mandatory language employed by the statute, the Courts nonetheless still retain discretion in sentencing. It is on this basis that in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Supreme Court declared the mandatory death sentence unconstitutional insofar as it also does not allow for consideration of mitigation. 8.In determining sentence, I take into account the said Supreme Court decision in the said case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR) in which it guided that, in sentencing, the following mitigating factors would be applicable; (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; and, (h) any other factor that the Court considers relevant. 9.In the case of Daniel Kipkosgei Letting v Republic [2021] eKLR, the Court of Appeal held that:“………. the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..” 10.Majanja J, in the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, in quoting the Muruatetu case (supra), stated that:“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………” 11.With the above guidelines and submissions in mind, I have considered the manner in which the offence was committed, the circumstances whereof are that the accused persons, knowing that the deceased, an old woman of about 70 years years, lived alone, raided the deceased in her house at night, assaulted and strangled her to death. It is not clear whether the motive was simply to kill the deceased but they also left with or stole her property and/or personal belongings, including a sack of maize. It is in fact this bag of maize that finally did them in. I say so because they then sold the same to PW2 who when he later learnt of the killing of the deceased remembered the sale made to him at a suspiciously very low price and reported the matter. It is upon this report that the accused, when interrogated, led the police to where they had hidden the stolen items. Although the accused denied involvement in the killing, they could not explain the above matters and were convicted on the strong “circumstantial evidence” against them, and also under the doctrine of “recent possession”. 12.I have also considered the findings and recommendations of the respective Pre-sentence Reports. The salient observations I make therefrom include that the accused persons are known habitual recidivists having previously, on several occasions, been in conflict with the law. The Report just falls short of declaring them as social misfits. In fact, according to the Report, the 2nd accused has previously been convicted for assault, although according to the Prosecution, no previous criminal records have been found against them. The family of the deceased and also the community at large, are also said to have not yet forgiven the accused and that there still is considerable hostility against the accused on the ground. According to the family of the deceased, no efforts have been made by the families of the accused to reach out to them for reconciliation, and that, to worsen the matter, they have allegedly been receiving threats from the accused and/or their associates. Basically, no interviewed stakeholder proposed the exercise of leniency, or non-custodial sentences for the accused. I also doubt the accused person’s alleged remorse as alluded by their Counsel as the Reports indicate that thy are still denying their involvement in the killing. 13.The Post-Mortem also paints a grim picture of a vicious, merciless and violent attack as indicated by the extent of injuries suffered by the deceased. According to the Pathologist, the cause of death was “manual strangulation” which he explained to mean strangulation by use of hands to block the airway. The extent of the injuries suffered by the deceased demonstrates that the accused employed a degree of violence that was fundamentally disproportionate and excessive. The assault was also unprovoked and at her age of 70 years, it is improbable that the helpless deceased could have even offered any threat to the accused persons, leave alone resist. Why then did they have to go to the extent of so cruelly snuffing life out of her, and in such a heinous manner? 14.The Court must reiterate that it is not acceptable to take a human life extra-judicially. I will therefore impose a severe prison sentence but since I find no indication that the accused were at any point released on bond or bail since their arrest, in accordance with the provisions of Section 333(2) of the Criminal Procure Code, the period that they will serve the prison term shall be mitigated as a result of a consideration of the period they already served in remand custody. Final Orders 15.Having considered all the relevant principles and circumstances, I impose sentence as follows:i.I hereby sentence the accused persons, Johnstone Akoyo, and Daniel Kipruto Kirwa to each serve forty (40) years imprisonment.ii.In computing the term to be served in prison, the period already spent by the accused in custody during the trial shall be deemed as already served portion of the prison term. In other words, the period that the accused shall serve in prison shall be computed from the date when they were arraigned, namely, 18/07/2016, the date of arrest not being clear.iii.Right of appeal within 14 days is hereby explained to the accused persons. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF JULY 2026……………………………….……..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Both accused persons present in open CourtN/A for Counsel for the accused personsMs. Muriithi for the StateCourt Assistant: Brian Kimathi