https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12875

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **HIGH COURT CRIMINAL CASE NO. E018 OF 2023** **CORAM: HON. CHARLES KARIUKI, J.** **REPUBLIC .................................................................................................... PROSECUTOR** **VERSUS** **ROBERT CHERUIYOT BUSIENEI alias NGORI ........................................... ACCUSED** **SENTENCING RULING** **14.08.2026** **A.** **INTRODUCTION** 1. The accused person, ROBERT CHERUIYOT BUSIENEI alias NGORI, was initially charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The charge was contained in the Information dated 13th November 2023. 2. The accused pleaded not guilty to the charge, whereupon the matter was scheduled for pre-trial directions. 3. Subsequently, the prosecution and the accused entered into plea negotiations. The negotiations culminated in the substitution of the charge of murder with the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. 4. Upon the substituted charge being read and explained to him, the accused pleaded guilty. The prosecution outlined the facts of the case, which the accused admitted as correct. The Court consequently convicted him of manslaughter on his own plea of guilty. 5. The prosecution informed the Court that the accused had no previous criminal record and requested that he be treated as a first offender. **B**. **FACTS OF THE OFFENCE** 1. The facts admitted by the accused were that his mother, hereinafter referred to as D1, was in a relationship with the deceased. 2. On 1st November 2022, D1 heard noises emanating from her homestead. When she proceeded there, she found the accused assaulting the deceased. 3. D1 attempted to restrain the accused and stop the assault, but the accused did not heed her intervention. 4. D1 called Vincent Cheruiyot, hereinafter referred to as D2, for assistance. Upon arriving at D1’s home, D2 found the accused continuing to assault the deceased. 5. By then, the deceased was unconscious. D2 assisted in removing him from the compound. The deceased subsequently succumbed to the injuries sustained during the assault. 6. The accused was thereafter arrested and charged with the offence. 7. A post-mortem examination conducted on 10th November [YEAR TO BE CONFIRMED] established that the cause of death was a head injury accompanied by secondary and cerebral haemorrhage. The post-mortem report was produced in evidence as Prosecution Exhibit No. 1. **C.** **MITIGATION AND PRESENTENCE REPORT** 1. Before determining the appropriate sentence, the Court called for a presentence report. The report was duly prepared and filed. 2. The presentence report indicates that the accused is aged 32 years and has no previous criminal record. He is, therefore, treated as a first offender. 3. The report further indicates that the accused had a history of excessive consumption of alcohol. He was reportedly intoxicated on the material day. However, the extent to which intoxication influenced his conduct was neither established nor sufficiently explained. 4. Although the accused’s counsel tendered mitigation, written submissions had not been filed by the time this ruling was prepared. The Court has nevertheless considered the mitigation made on behalf of the accused, his status as a first offender, his decision to enter into a plea agreement and his acceptance of responsibility for the offence. 5. The deceased’s family remains deeply aggrieved by the loss of their relative and has expressed a desire for justice. The presentence report recommends a custodial sentence to serve punishment, facilitate rehabilitation, and support the accused’s eventual reintegration into society. **D. ISSUE FOR DETERMINATION** 1. The sole issue for determination is the appropriate sentence to be imposed upon the accused for the offence of manslaughter. **E. ANALYSIS AND DETERMINATION** 1. Section 205 of the Penal Code provides that a person who commits the felony of manslaughter is liable to imprisonment for life. The provision prescribes the maximum sentence but leaves the Court with discretion to impose an appropriate sentence according to the circumstances of each case. 2. Sentencing is an exercise of judicial discretion. That discretion must be exercised judiciously, proportionately and consistently, having regard to the gravity of the offence, the circumstances in which it was committed, its consequences, the offender’s personal circumstances and the interests of the victim and the wider community. 3. The Judiciary Sentencing Policy Guidelines, 2023 identify the principal objectives of sentencing as retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation of unlawful conduct. An appropriate sentence may serve several of these objectives simultaneously. 4. In determining sentence, the Court has considered the following mitigating factors: 5. The accused is a first offender; 6. He pleaded guilty to the lesser charge of manslaughter; 7. His plea saved judicial time and spared the witnesses and the deceased’s family the burden of a full trial; 8. He accepted responsibility for his conduct; and 9. He is aged 32 years and retains prospects of rehabilitation. 10. The Court has also considered the following aggravating factors: 1. The deceased was subjected to a sustained physical assault; 2. The assault continued despite D1’s attempt to restrain the accused; 3. The deceased was rendered unconscious as a result of the assault; 4. The accused inflicted serious injuries to a vulnerable part of the deceased’s body, namely the head; 5. The injuries inflicted by the accused directly resulted in the deceased’s death; and 6. The offence caused the irreversible loss of human life and profound suffering to the deceased’s family. 11. Although the accused was reportedly intoxicated, voluntary consumption of alcohol cannot, by itself, excuse or substantially diminish responsibility for a violent assault. There is no sufficient evidence demonstrating that the accused’s intoxication reached a level that materially impaired his capacity to appreciate the nature or consequences of his conduct. 12. The sanctity of human life is protected by Article 26 of the Constitution. The deceased lost his life through an unlawful and sustained assault. The sentence must reflect the seriousness of that consequence while remaining proportionate to the accused’s culpability and personal circumstances. 13. Having considered the facts, the mitigation, the presentence report, the accused’s status as a first offender, the interests of the deceased’s family and the applicable sentencing principles, I find that a non-custodial sentence would neither reflect the gravity of the offence nor adequately serve the objectives of retribution, deterrence and community protection. 14. Nevertheless, the maximum sentence of life imprisonment would be disproportionate in the circumstances, particularly considering the accused’s plea of guilty, his acceptance of responsibility and his lack of previous convictions. **F. SENTENCE AND FINAL ORDERS** 1. Accordingly, the accused, ROBERT CHERUIYOT BUSIENEI alias NGORI, is sentenced to serve TEN (10) YEARS’ IMPRISONMENT for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. 2. Pursuant to section 333(2) of the Criminal Procedure Code, the sentence shall be computed from the date on which the accused was first placed in remand custody. The entire period the accused spent in lawful custody before sentencing shall be credited against the sentence imposed. 3. The accused has a right of appeal against the sentence to the Court of Appeal within **fourteen (14) days from the date hereof.** **DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAROK THIS 14TH DAY OF AUGUST 2026.** **........................................................ CHARLES KARIUKI JUDGE**