https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8982

Republic v Esitaka alias Musizi & 3 others (Criminal Case 2 of 2020) [2026] KEHC 8982 (KLR) (16 June 2026) (Sentence) Neutral citation: [2026] KEHC 8982 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Case 2 of 2020 S Mbungi, J June 16, 2026 Between Republic Prosecutor and Julius Mzee Esitaka Alias Musizi 1st Accused Josephat Ochieng Maboss 2nd Accused Stephen Odhiambo Baraza 3rd Accused Jeremiah Ateko Mulando 4th Accused Sentence 1.The 1st and 2nd accused persons were initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Upon evaluating the evidence on record, this court found that the prosecution had failed to establish malice aforethought as required under Section 206 of the Penal Code. 2.Consequently, pursuant to Section 179(2) of the Criminal Procedure Code, the charge was reduced to manslaughter contrary to Section 202 as read with Section 205 of the Penal Code, and the 1st and 2nd accused persons were convicted accordingly. 3.The court has considered the mitigation tendered by the 1st accused, the circumstances of the offence, the aggravating and mitigating factors, and the applicable law. 4.Section 205 of the Penal Code provides for a maximum sentence of life imprisonment for the offence of manslaughter. However, sentencing is a discretionary exercise and each case must be determined on its own peculiar facts and circumstances. 5.In the case of Francis Karioko Muruatetu & Another v Republic, the Supreme Court emphasized that sentencing should be individualized and proportionate, taking into account the circumstances of the offence and those of the offender. The court underscored the need for a sentencing court to consider both aggravating and mitigating factors before arriving at an appropriate sentence. 6.Similarly, in Dismas Wafula Kilwake v Republic, the Court of Appeal reaffirmed that sentencing should advance the objectives of punishment, deterrence, rehabilitation, restorative justice, community protection, and denunciation. 7.The court is also guided by the decision in Ambani v Republic where it was held that sentencing lies within the discretion of the trial court provided such discretion is exercised judiciously and on sound legal principles. 8.Further, in Wanjema v Republic, the court held that an appellate court will not interfere with a sentence unless it is manifestly excessive, founded on wrong principles, or where relevant factors were ignored. 9.The court has considered the aggravating circumstances. A human life was lost as a result of the unlawful assault perpetrated upon the deceased. 10.The post-mortem report established that the deceased sustained multiple injuries consistent with a violent assault. The sanctity of human life is protected by law and any unlawful conduct leading to loss of life must attract an appropriate sanction. 11.The court has equally considered the mitigating factors. From the evidence on record and as found in the judgment, the incident arose from a spontaneous confrontation and not from a premeditated plan to kill the deceased. There was no evidence of prior grudge, motive, or preparation. 12.The deceased and the 2nd accused were already engaged in a violent altercation when the events leading to the fatal injuries occurred. 13.The court previously held that malice aforethought had not been proved. Those same circumstances are relevant in sentencing because they demonstrate reduced moral blameworthiness when compared to a deliberate and premeditated killing. 14.With respect to the 1st accused, the evidence established that he assaulted the deceased by striking him with the backside of a slasher and kicking him while he lay on the ground. Although he was not shown to have planned the attack, his actions contributed to the unlawful assault that culminated in the death of the deceased. A custodial sentence is therefore warranted. 15.As regards the 2nd accused person, the court notes that he absconded trial and the proceedings continued in absentia. His absence was self-induced. By absconding, he demonstrated disregard for the administration of justice and deprived the court of the benefit of his mitigation. This constitutes an aggravating factor in sentencing. 16.Having considered all the circumstances of this case, the court is satisfied that a custodial sentence is appropriate. 17.Accordingly:I.The 1st accused person, Julius Mzee Esitaka alias Musizi, is hereby 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.II.Pursuant to Section 333(2) of the Criminal Procedure Code, the period lawfully spent in custody, if any, shall be taken into account. From the record the 1st Accused spent 15 days in custody. He was arrested on 7.1.2020 and released on bond on 23.1.2020.III.The 2nd accused person, Josephat Ochieng Maboss, having absconded trial and having been convicted in absentia, is hereby sentenced to serve Fifteen (15) Years’ Imprisonment for the offence of manslaughter. The sentence shall commence upon his arrest and committal to prison or upon his surrender before a competent court.IV.Five (5) months and seven days shall be reduced from the sentence to factor the period he spent in custody.V.Right of Appeal 14 days.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 16TH DAY OF JUNE, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Zildah/VelmaMs Emily Kiu for the ODD present online.Mr. Otsyeno for the accused’s present.1st Accused present.2nd Accused present.