https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11121

Republic v DK (Criminal Case E006 of 2023) [2026] KEHC 11121 (KLR) (22 July 2026) (Order) Neutral citation: [2026] KEHC 11121 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Case E006 of 2023 JRA Wananda, J July 22, 2026 Between Republic Prosecution and DK Subject Order 1.The subject, said to have been then 17 years old, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on 9/01/2023, at Kimuli village, within Ngeria Location, Kapseret Sub-County, in Uasin Gishu County, he murdered one Julius Tororei, a 57 years old man. 2.Mr. Ayora Advocate represents the subject, while Prosecution Counsel Ms. Clare Muriithi appears for State. 3.The subject took plea on 21/02/2023 and pleaded not guilty. The parties however subsequently entered into plea bargain discussions which eventually culminated to the Plea Bargain Agreement dated 24/10/2025, which indicated that the subject had agreed to plead guilty to the lesser charge of Manslaughter, and to then let the Court determine the sentence. 4.The matter then came up for plea bargain hearing before me on 15/10/2025. The subject was sworn on oath, and after examining him, I recorded my satisfaction that Section 137F-137G of the Criminal Procedure Code, governing the plea bargain process had been complied with, that the subject had signed the agreement together with his Counsel, voluntarily, and without any coercion, that he fully understood the effect thereof, and that members of the families of both the subject and the deceased had been involved in the process. For the subject, the mother was involved throughout the process, and also religiously attended Court regularly, while for the family of the accused, the son represented the family at the discussions. I thus allowed the subject to take a fresh plea, now on the fresh charge of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code, which he did, and upon which he then pleaded guilty. The statement of facts of the case (factual basis) was then read out to the subject, basically as follows:“The deceased, Julius Tororei, and the subject were neighbours. The deceased used to work as a guard in a neighbouring tree farm. On 2/01/2023, the deceased went to the home of the deceased around 2.00 pm where he met the subject's sisters and their father. The deceased reported to the subject's father that the subject had cut down some trees in his employer's farm without permission. The subject's father referred the deceased to the subject's mother, who requested the deceased to take her to the farm to see the cut down trees. While on their way, they met the subject who was splitting firewood using an axe. A confrontation ensued between them and the deceased struck the subject on his back with a walking stick he had. The subject tried to run away but the deceased blocked him and struck him again. In turn, the subject who was wielding an axe struck the deceased on the head and the deceased fell down. The subject's mother administered first aid on the deceased and he was then rushed to Kelme Health Center where he was referred to MTRH and admitted.The following day, 3/01/2023 the subject's father, filed an assault report against both the deceased and the subject at Kiambaa Police Station. Police officers visited the scene where thev recovered the axe used in the attack but could not arrest the subject as he was aa large. The deceased succumbed on 9.01.2023 while undergoing treatment. On 9.2.2023, a post-mortem examination on the body of the deceased was conducted at Moi Teaching and Referral Hospital and the pathologist opined that the cause of death was due to severe head injury due to assault. The subject was later arrested and charged for offence of Murder 5.Prosecution Counsel then produced the Post Mortem Report dated 9/02/2023, and the axe referred to above, as exhibits. 6.When asked to confirm or refute or comment on the correctness of the said facts as read out, the subject confirmed the same as being correct and true. Satisfied that the statement of facts disclosed sufficient factual basis for the charge, this Court accordingly entered a finding of guilty against the subject on the offence of Manslaughter on his own plea of guilty. 7.In mitigating on behalf of the subject, Mr. Ayora submitted that the subject is a “child” within the meaning ascribed in Article 260 of the Constitution and Section 2 of the Children’s Act, and that, as such, Article 53(2) of the Constitution, and Section 191 of the Children’s Act are relevant. He described the subject as a first offender, law-abiding, and from a humble background, that the incident was not premeditated, and that he is very remorseful. He asserted that the subject is involved in farming, he has a high potential, and has a strong family support. He submitted further that because of being in custody in this case, the subject missed out on the opportunity to complete his primary school under the old 8-4-4 system, and, instead, joined a local polytechnic studying mechanics. He then prayed for a non-custodial sentence to enable the subject obtain guidance and counselling and community-based rehabilitation. 8.On her part, Ms. Muriithi confirmed that the subject is indeed a first offender, and submitted that although a life was lost, the subject is still a “child” under the law, and sentences for minors are as set out under the law. She agreed that the subject has a potential for rehabilitation. 9.I then directed that a pre-sentence Report be prepared and filed, which was done. The Report, dated 24/10/2025, and prepared by the Probation & Aftercare Service Uasin Gishu County, indicated that it had been compiled from information obtained from the Court file, from the subject, family members, relatives, local administration and neighbours. Determination 10.The applicable law on sentence for the offence of Manslaughter is Section 205 of the Penal Code which provides as follows:“Any person who commits the felony of Manslaughter is liable to imprisonment for life” 11.I note that under the plea bargain Agreement, the Prosecution recommends a non-custodial sentence of 3 years’ probation. 12.As already stated, this is a case of the offender being a minor at the time of commission of the offence, and transiting to the age of majority at the time of sentencing. Neither Counsel however bothered to address the Court on the recommended mode of sentencing in a case such as this one, where the accused, when he committed the offence, was still a juvenile, but has now, at the date of sentencing, attained the age of adulthood. 13.Nonetheless, Section 238 of the Children’s Act 2022 provides as follows:(1)No court shall order the imprisonment of a child.(2)Notwithstanding the nature of any offence punishable by death, no court shall impose the death penalty on a child on a finding of guilty for such an offence.(3)A Children’s Court shall not make any order to send a child under the age of twelve years to a rehabilitation school.(4)The performance of community service under an order of the Court shall be in accordance with the Community Service Orders Act (Cap. 93). 14.Section 239 (formerly Section 191) then provides the options recommended for dealing with children in conflict with the law as follows:“(1)Where a child is tried for an offence, and the Court is satisfied as to their guilt, the Court may deal with the case in one or more of the following ways—(a)discharge the child under section 35(1) of the Penal Code (Cap. 63);(b)discharge the child on his or her entering into a recognisance, with or without sureties;(c)make a probation order against the offender under the provisions of the Probation of Offenders Act;(d)commit the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender;(e)if the child is between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances;(f)order the child to pay a fine, compensation or costs, or any or all of them, having regard to the means of the child’s parents or guardian;(g)in the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act;(h)place the child under the care of a qualified counsellor or psychologist;(i)order that the child be placed in an educational institution or vocational training programme;(j)order that the child be placed in a probation hostel under the provisions of the Probation of Offenders Act;(k)make a community service order;(l)make a restorative justice order;(m)make a supervision order;(n)make any other orders of diversion provided for in this Part; or(o)deal with the child in any other lawful manner as may be provided under any written law. 15.Regarding the situation, as herein, where the offender was a minor at the time of commission of the offence but has now transitioned to the age of majority at the time of sentencing, the Court of Appeal, in the case of JKK v Republic [2013] KECA 241 (KLR) held that:“ 18.The dilemma we face in this appeal was the ascertainment of the age of the appellant. Going by the remarks by the Judge, he was about 17 years when he was first arraigned in court in March, 2009, it is now four years later, which means he is now over the age of 18 years, therefore, he is not suitable to be subjected to any of the sentences provided for under the Children Act. The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest. A death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his omission or lack of judgment, by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes, which can only happen after serving a custodial sentence. 19.For the aforesaid reasons we are inclined to interfere with the death sentence imposed by the trial court and substitute it with imprisonment for a period of 12 years. We allow the appeal to the extent that the death sentence is substituted with twelve years. To that extent the appeal partially succeeds on sentence but the appeal on conviction is dismissed. 16.The Court of Appeal reiterated the above position in the subsequent case of Dennis Cheruiyot [2014] eKLR, in which it held as follows:“Whatever the case, life imprisonment is not provided for under the Children Act, but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. We think that due to the gravity of the offence, and the current age of the appellant, he cannot be released to the society without being brought to terms with the consequences of his action or omissions by a custodial sentence. It is for this reason that we are inclined to allow the appeal against the life sentence imposed by the trial court and substitute it with imprisonment for a period of 10 years from the date of conviction. We therefore allow the appeal to the extent that the life sentence imposed on the appellant is substituted with ten years imprisonment. 17.Prof. J. Ngugi J (as he then was), in the subsequent High Court case of DLK v State [2018] KEHC 6153 (KLR), in following the two Court of Appeal decisions above, held as follows:“ 10.By relying on section 191(1)(l) of the Children’s Act to fashion an appropriate sentence for the child offender in both cases, the Court of Appeal is drawing attention to the lacuna in our law regarding juvenile justice. Our statutory scheme envisages only two types of offenders: child offenders – those who are under eighteen years old – and adult offenders – those who have attained eighteen years of age. The statutory scheme does not, in any nuanced manner, distinguish the different developmental stages of children – especially those in teenage years who are, typically, both in need of care and protection but can be dangerous to the society due to their deviant behaviour. The statutory scheme stipulates that a child above sixteen years old can only be held in a borstal institution for a period not exceeding three years. 11.This often creates a dilemma for trial courts which may be faced with a juvenile who is only slightly below eighteen years old but who committed a serious offence such as (depraved heart) murder or rape or particularly vicious armed robbery. Since the statutory scheme provides that such a child cannot be sent to prison and since the law further provides that such a child can only be sent to a borstal institution for no more than three years, the options are limited to trial courts even where on analysis and evidence such a court might be persuaded that the almost-adult it is dealing with is a danger to society; and has failed to acknowledge or come to terms with his or her errors. 12.A similar dilemma is created when the offender has already turned eighteen at the time of conviction or at the time of appeal as is the case here. Where the offence committed was a particularly vicious or serious one, the option of releasing such an offender back to the society is not an attractive one. It may even be downright dangerous for the society. Further, it might deny the individual offender a true opportunity to reflect on his actions in a custodial setting and take the rehabilitative turn. 13.While these dilemmas call for a reform to our juvenile justice system to provide a more nuanced statutory scheme, I am persuaded, in following the Court of Appeal in the Dennis Cheruiyot case and the JKK case, that when faced with the situation such as the one we have in this case, the solution lies in section 191(1)(l) of the Children’s Act: to deal with the offender in question in any other lawful manner. In this case, I have followed these two precedents regarding the right approach to sentencing is such cases. ..................................................................................................................................................... 14.In the face of all these factors, I am persuaded that the petitioner should be sentenced to twelve years imprisonment for each of the two counts of robbery with violence. ......................................” 18.The Court of Appeal, in its recent decision in the case of Kiti v Republic [2023] KECA 1403 (KLR), while setting aside a sentence that the offender be detained at the President’s pleasure, yet again, reiterated the above position in the following manner:“ 25.It is desirable that a message be sounded out that children who commit serious crimes, and transit into adulthood at time of conviction, cannot walk home scot-free; and whereas, it is indeed in their best interest that they must not be treated like adults; yet in the absence of a penalty commensurate with the objectives in meting out a sentence, then the measure of last resort contemplated in Article 53 (2) of the Constitution must become applicable. 26.From the foregoing, having set aside the unconstitutional sentence which was meted; and taking into consideration the period that he has been incarcerated, we substitute it with a prison term of 10 years, which shall run from the date that he was arrested in October 2015, and which translates to the term served.” 19.It is therefore clear that although in all the said decisions, the respective Courts were alive to the provision that “no court shall impose the death penalty on a child on a finding of guilty for such an offence”, all the Courts, noting that the offenders had since transitioned to adulthood as at the date of sentence, nonetheless, invoked their powers to “deal with the child in any other lawful manner as may be provided under any written law”, and imposed prison sentences. 20.With the above guidance, in determining the appropriate sentence to impose in this case, I take into account the Supreme Court decision in the the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR) in which it was 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. 21.Similarly, the Court of Appeal, in the case of Daniel Kipkosgei Letting Vs. Republic [2021] eKLR, held as follows;“With regard to the above, we observe 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. ……..” 22.Further, Majanja J, in quoting the case of Francis Karioko Muruatetu (supra), in the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, stated as follows:“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. ………………………………” 23.With the above guidelines in mind, I have considered the circumstances surrounding the commission of this offence. The reason for the altercation and/or confrontation between the subject and the deceased is said to have been the alleged cutting of trees by the accused in a farm guarded by the deceased, which altercation turned violent and ended up with the accused striking the deceased on the head with an axe leading to the death. From the Post Mortem Report, it is evident that the manner in which the subject struck the deceased was vicious. This is confirmed by description of the cause of death as “severe head injury due to assault”, and the deceased is reported to have suffered, inter alia, a skull fracture. By failing to control his anger and temperament, the subject, even if he struck the deceased as a means of escape, still he used excessive force and a degree of violence that was disproportionate and wholly unnecessary noting that he targeted the head of the deceased. 24.The above are clear aggravating circumstances that this Court is duty-bound to consider. 25.There are however also notable mitigating circumstances. First, it is reported that it is the deceased who started assaulting the subject by striking him with a walking stick. It is said that the subject was splitting firewood with an axe and it is when the deceased struck him a second time and then also blocked him from escaping from the assault that the subject reacted by striking back at the deceased with the axe on the head. The killing therefore does not seem to have been premeditated. 26.I have also taken into account the fact that the subject has been described as a first offender. He also entered into the plea bargain agreement and thus pleaded guilty to the lesser charge of Manslaughter, in the process, saving much judicial time. He also displayed a lot of remorse. 27.I have also considered the contents, and recommendations of the Pre-sentence Report. The salient observations I make therefrom include that the subject comes from a poor economic background. The family of the deceased is also said to have since healed and forgiven the subject, and that the two families have now reconciled and participated in a traditional cleansing ceremony in accordance with Kalenjin culture. 28.The community and the local administration are also said to have attested to the subject’s good behaviour, and have no objection to the Court treating him with leniency. I have also taken into account the subject’s young age of 19 years old, and his evident desire for re-integration back to the community to rebuild his life. 29.In the circumstances, I find that a custodial sentence would not be appropriate in this case. The subject having already spent more than 1 year in juvenile remand custody, I trust that he has had ample time to reflect on his actions, and has to a large extent realized his folly. Observing him in Court, it was obvious that whole episode has taken a toll on him, and he is genuinely remorseful. Final Orders 30.In circumstances, I make orders as follows:i.I hereby place the subject, DK, on probation for a period of three (3) years.ii.The Officer-in-Charge, the Probation & Aftercare Service Uasin Gishu County, is hereby directed, during the period that the subject shall be under probation, to initiate intervention measures on guidance and counselling, anger management and close supervision of the accused to ensure that he keeps track of his educational journey, conduct and general progress. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF JULY 2026…………….…..……..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Subject present in open CourtMr. Ayora for the subjectMs. Muriithi for the StateCourt Assistant: Rodgers Tshombe