https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11105

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CRIMINAL CASE NO. 83 OF 2016** **REPUBLIC..........................................................................................................PROSECUTOR** **VERSUS** **JOASH KICHWEN………………....….....................................................................ACCUSED** **RULING ON SENTENCE** 1. The accused person was 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 29/11/2016 at Kapkures village, Kapkures sub-location in Eldoret West Sub County, within Uasin Gishu County, he murdered one **Joel Yego**, a neighbour. As the accused denied the charge, the case proceeded to full trial and by the Judgment rendered by this Court on 13/02/2026, he was found guilty and convicted. 2. Regarding the sentencing to be imposed, I directed that a pre-Sentence Report be prepared and filed, which was done. The Report, dated 14/04/2026 and prepared by the Probation & Aftercare Service (Uasin Gishu Station Office) indicated that it had been compiled on the basis of information gathered from, ***inter alia***, the Court and police files, interviews with the accused and his family, family of the deceased, the local community, and also observations made by the Probation Officer during field study. 3. In respect to mitigation, **Mr. Ondieki**, the accused person’s Counsel filed the Submissions dated 2/04/2026. He retraced the matters leading to the killing of the deceased, which he summarised by submitting that the killing happened because the accused walked into his house at about 11.00 am and on entering his bedroom, he realized that his wife was having sex with the deceased, and that the accused did not retreat but acted there and then. He therefore asked the Court to consider what he described as “***the element of sudden and grave provocation***” under **Section 207** of the **Penal Code** and “heat of passion”, asserting that the offence is “manslaughter” and not “murder” as the accused found the deceased in his marital bed and that the confrontation was not premeditated. He described the discovery of his wife having sex as shocking, emotionally overwhelming, and demeaning for a man of the accused person’s stature, a father of 9 children and several grandchildren. He reiterated that there was no prior planning of the killing, no weapon procured beforehand, and no calculated intention to kill, and that the assault occurred in the immediate aftermath of discovering the act of infidelity. Counsel also raised what he referred to as “***the killer disease element***” urging that the accused is 67 years and suffering from prostrate cancer stage 4, and as such, he is highly delicate and fragile and must adhere to specific treatment, including what in his words, he described as “***routine chemotherapies and drugs which prison cells have openly confessed that they are unable to provide such special services and special meals to the accused***”. He referred to what he described as “***medical diagnostic process filed with the Court and from the prison medical officer report***”. He thus urged the Court to set the accused free, or at least impose a non-custodial sentence as the accused is also a first offender with no previous record of wrongdoing. He concluded by submitting that due to the humiliating actions of the deceased of engaging in sex with the accused person’s wife, the family of the accused is devastated, scattered and suffering great shame in the community. 4. **Prosecution Counsel** **Ms. Muriithi**, on her part, submitted that although the accused is a first offender, the deceased was a breadwinner for his family, which has suffered as result of his death. She urged that although the accused brought out allegations of self-defence, this was not such a case as the killing was premeditated. She then prayed for a custodial sentence. **Determination** 1. The applicable law on sentence for the offence of murder is **Section 204** of the **Penal Code** which provides as follows: **“Any person convicted of murder shall be sentenced to death.”** 1. It is now however, generally agreed that in spite of the mandatory language employed by the statute, Courts nonetheless still retain discretion in sentencing. It is on this basis that in the case of [**Francis Karioko Muruatetu & Another v Republic [**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2)**2017] eKLR**, the Supreme Court declared the mandatory death sentence unconstitutional insofar as it also does not allow for consideration of mitigation. 2. In determining sentence, I take into account the Supreme Court decision in thethe 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.** 3. Similarly, the Court of Appeal, in the case of [**Daniel Kipkosgei Letting Vs. Republic**](http://kenyalaw.org/caselaw/cases/view/215923/) **[2021] eKLR**, pronounced 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. ……..”** 1. Further, **Majanja J**, in quoting **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. ………………………………”** 1. With the above guidelines in mind, I have considered the manner in which the offence was committed which is that the accused who had been away on a short travel, returned home unexpectedly at night, walked into his bedroom and found a man in bed with his wife, and knowing his wife’s alleged adulterous nature, quickly established she had brought a man into his bed for sexual activities, which in fact was the true position. In reaction to what he interpreted as betrayal, humiliation, and disrespect, the accused picked some sticks nearby, and viciously attacked the deceased, in the process, inflicting serious injuries that led to the death of the deceased. I thus agree with **Mr. Ondieki**, that the killing may have happened out of an impulse reaction. The stumbling on his wife with the deceased in the accused person’s own marital bed was obviously shocking, emotionally overwhelming, and demeaning to the accused. 2. I have also considered the contents, findings and recommendations of the Pre-sentence Report. Some of the salient observations I make therefrom is that the accused is at present aged about 66 years old, with 9 children, all adults and married, that his family members describe him as a good person, are supportive of him, are willing to receive him back, and have pleaded for leniency. They are said to be concerned about his health since he is currently on lifetime medication. He is also reported to regret the action and is remorseful. It is however also stated that after the incident, the community burnt down his house and as such, his family had to relocate elsewhere, and that the community is still unwilling to receive him back anytime soon. On its part, the local administration is reported to have confirmed that the accused would be safe within the area where his family relocated and where they have also built for him a house. The Report then proposes a non-custodial sentence. Further, I take into account that the accused is a 67 years old grandfather, and reported to be suffering from a terminal disease requiring close and constant medical care. 3. The above are, no doubt, mitigating factors which ought to have a bearing on the sentence to be imposed. 4. There are however notable aggravating circumstances. For instance, the Post-Mortem Report paints a grim picture of a vicious and violent attack by the accused as indicated by the severe injuries inflicted upon the deceased. The cause of death is stated to have been “***extensive soft tissue injuries and head injury due to blunt force trauma***”. The deceased therefore died from injuries inflicted on him when the accused hit him multiple times with the sticks. The accused must have undergone a very painful death. **PW5**, the Pathologist, testified that the pattern of the multiple injuries noted on the limbs, and bruises on the scalp, were clearly consistent with defence wounds, which means that the deceased was defenceless and did not fight back. In other words, the injuries were inflicted when the deceased was trying to ward off the repeated blows that the accused aimed at his body with the sticks. The nature and extent of the injuries therefore suggests that the attack was brutal and intended to cause maximum grievous harm. 5. In resorting to physical violence, and taking the law into his own hands, the accused assumed a foreseeable risk of inflicting grievous, and potentially terminal harm. Regardless of the betrayal and humiliation that his wife and the accused may have caused him by having the audacity to engage in a romantic act in the accused person’s own marital bed, the accused clearly resorted to a degree of violence that was excessive, disproportionate and unnecessary. There is no evidence that the accused was under any imminent threat to his life as the deceased was obviously defenceless and was not armed. The opportunity to retreat and de-escalate the situation remained available to the accused and, by choosing violence, he exercised a fatal error in judgment. There is therefore no doubt that the accused used unjustifiable and excessive force in attacking the deceased and deliberately targeted, among other partes of the body, the head of the deceased, fully aware that an assault of that nature would have severe impact on a human being. By failing to control his anger, the accused prematurely took the life of the deceased. 6. In view thereof, I find that a non-custodial sentence would not be appropriate in this case. Through a rash action by the accused, a human life was lost and the Court must reiterate that it is not acceptable to take a human life extra-judicially, even if unintended, whatever the circumstances or level of provocation. I will therefore impose a prison sentence, though relatively lenient considering the circumstances under which the killing happened, and also the ill-health of the accused. **Final Orders** 1. In the end, I make orders as follows: 2. I hereby sentence the accused, **Joash Kichwen**, to serve **eight** **(8) years** imprisonment. 3. However, in computing the term to be served in prison, in accordance with the provisions of **Section 333(2)** ofthe **Criminal Procedure Act**, the following periods spent by the accused in custody during the trial, shall be deemed as already served portion of the prison term already served: 4. between 29/11/2016 (date of arrest) and 2/08/2018 (date of release on bond), and: 5. between 13/02/2026 (date of conviction upon which he was taken back into custody) and 17/07/2026 (date of sentencing). 6. Right of appeal within 14 days is hereby explained to the accused persons. 7. Because of the state of his health, the prison officials are directed to ensure that the accused person receives the best possible medical attention available. 8. The accused shall, at any time, be at liberty to move the Court under the appropriate provisions of law, to review the custodial sentence imposed should health experts deem that his state of health has deteriorated to the extent that the prison facilities no longer possess the capacity to attend to his medical needs and that his life is in jeopardy as a result. Needless to state, the Application, should it be filed, shall be considered and determined strictly under the laid down principles of law. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF JULY 2026** **……………..……..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Accused present physically in Court** | | | **Ms. Ondieki for the accused** | | | **Ms. Muriithi for the State** | | | **Court Assistant: Rodgers Tshombe** | |