https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10550

Republic v Kitheka alias Sisi (Criminal Case E021 of 2024) [2026] KEHC 10550 (KLR) (16 July 2026) (Sentence) Neutral citation: [2026] KEHC 10550 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case E021 of 2024 NIO Adagi, J July 16, 2026 Between Republic Prosecutor and Mathias Mwanzia Kitheka alias Sisi Accused Sentence 1.The accused Mathias Mwanzia Kitheka alias Sisi was initially charged with the offence of murder Contrary to section 203 as read with section 204 of the Penal Code and by a plea bargain agreement entered into between the accused and the prosecution and accepted and recorded in Court on 20th day of May 2026. The said charge was reduced to manslaughter contrary to section 202 as read with section 205 of the Penal code. The particulars of which were that on 11th day of August 2024 at Ulaani village, Ulaani Sub-location, Kathama Location, in Mwala Sub-County, within Machakos County unlawfully caused the death of Attanus Mutiso Kithanda. 2.He pleaded guilty to the said charge of manslaughter, the facts of which were that on 9th August 2024 at around 08.30 p.m., the accused person went to where he had burnt charcoal and placed a full sack just near his home and found that half of the charcoal had been stolen. He informed his father Joseph Kitheka Kitonga D-1 that his charcoal had been stolen and he would find out who stole the charcoal. The following day on 10th August 2024, the accused went to Ulaani market to investigate if he could find who stole his charcoal and he got information that a certain woman bought charcoal about half a sack. He went to the homestead of the woman known as Zipporah Mueni Makau D-2 and found the charcoal. D-2 told the accused that she bought the charcoal from Attanus Mutiso Kithanda the deceased who was a distant cousin to the accused. The accused went to the deceased’s mother Martha Mueni Kitheka D-3 and informed her that her son had stolen his charcoal and that he was going to deal with him. Hellen Mbatha Kithanda D-4, the deceased’s sister was present when the accused gave information to D-3. In the evening at around 1600hrs, the accused told D-1 that he had found the person who stole his charcoal. On 11th August 2024 at around 0000hrs, the accused went to where he left the half sack of charcoal was and climbed on a tree to wait for the thief to come and pick the remaining charcoal. After a few minutes, the deceased approached the place ready to pick the charcoal and the accused went armed with a stick and panga. The accused threw his panga and cut the left foot of the deceased and he fell down a few meters from the deceased’s home. He then went to his home and informed D-1 that he had injured the deceased. In the morning at around 0600hrs, as D-1 was going to his hotel business, he found the deceased lying on the road near his house with severe injuries and was still alive. He asked the deceased what happened and he answered that he had been cut by the accused after he alleged that he stole his charcoal. The deceased requested D-1 to inform his family and D-1 went and informed D-3 that her son was injured and he needed assistance. D-3 informed D-5 her son John Maingi Kithanda and D-4. Together with D-6, Kingoo Masuni and D-7 Joseph Mbuthu Kitengé, D-4 and D-5 went to the scene and found the deceased still lying on the road bleeding from the head and the left leg. The deceased also told them that the accused cut him with a panga and he requested them to take him to the house and they did wait. While they were waiting for a vehicle to take him to hospital, the accused had gone to report the incident at Kathama police post and was placed in custody. The police informed the DCI officers from Masii who visited the scene and found the deceased lying in the house. The scene was processed and blood stained soil was recovered from the scene, a left foot shoe believed to belong to the accused was also found at the scene. The body had a left foot fracture and several cuts on the head. A blood stained panga and a blood stained right leg open shoe, the partner to the left shoe was recovered from the accused’s house and preserved as exhibits. The body was moved to Mbaku Funeral Home at Matuu awaiting post mortem. 3.A post mortem was conducted on 14th August 2024 and as a result of the examination, the doctor formed the opinion that the cause of death was cardiopulmonary arrest due to massive haemorrhage and left chest heamopneumoxthorax. Subsequently the accused was charged with the offence of murder which has now been substituted with manslaughter through plea bargain. 4.In mitigation, the accused through his Counsel Ms. Katee prayed that this Court exercises mercy, leniency, and judicial discretion in imposing sentence and respectfully placed before the Court the following mitigating factors:The Accused is a First Offender- He has no previous criminal record and this matter marks his first encounter with the criminal justice system. He has lived as a law-abiding citizen prior to this unfortunate incident and there is therefore strong indication that he is capable of rehabilitation and reintegration into society.Acceptance of Responsibility and Guilty Plea- The accused person accepted responsibility for his actions and voluntarily entered into a plea bargain agreement leading to the reduction of the charge from murder to manslaughter. By doing so, he saved this Honourable Court considerable judicial time and spared witnesses and family members the emotional trauma of a full trial. The plea is a demonstration of remorse, accountability, and willingness to face the consequences of his actions.Voluntary Surrender to the Police-That immediately after the incident, the accused person voluntarily presented himself at the police station and reported the matter. He did not flee from justice or attempt to evade arrest. His conduct demonstrates cooperation with law enforcement authorities and is a strong indicator of remorse and acceptance of responsibility. The Judiciary Sentencing Policy Guidelines provide that cooperation with law enforcement agencies and voluntary surrender are relevant mitigating factors to be considered by the sentencing court.Period Already Spent in Custody- The accused person has been in remand custody since the year 2024 (date to be shared by prosecution) pending the hearing and determination of this matter. He has therefore already spent a considerable period in incarceration. The Court is urged to take into account the provisions of Section 333(2) of the Criminal Procedure Code and credit the period already spent in custody when arriving at an appropriate sentence.Personal and Family Circumstances -The accused person is a man aged over 30 years who worked as a casual labourer before his arrest. He was the sole breadwinner and provider for his elderly parents and younger siblings who depended on him for their upkeep and survival. His continued incarceration has occasioned hardship upon his family who relied on him for support. This Court ought to consider the accused person’s social and family circumstances in arriving at an appropriate sentence.Possibility of Reconciliation and Rehabilitation-Carefully consideration has been made on the Victim Impact Statement filed before this Court dated 14th May 2026. The accused acknowledge and appreciate the profound grief, pain and loss suffered by the family of the deceased. However, he respectfully submits that himself and the deceased’s family are relatives. 5.While the family understandably continues to grieve, the existence of family ties presents an opportunity for eventual reconciliation, restoration, and healing. 6.The statement demonstrates that the deceased's mother, who is elderly and unwell, continues to mourn the loss of her son while the deceased's siblings remain emotionally affected by the incident. The family relations between the two households have also become strained owing to the tragic circumstances of this case. The accused does not seek to diminish that pain. Indeed, the loss of human life is irreversible and no sentence imposed by this Court can fully compensate the family for their loss. The accused respectfully submit, however, that sentencing should not be guided solely by retribution but by all the recognized objectives of sentencing, namely punishment, deterrence, rehabilitation, restorative justice, community protection and denunciation as set out in the Sentencing Policy Guidelines. 7.While the victim's family understandably seeks justice and opposes a non-custodial sentence, the Court is nevertheless called upon to balance the interests of the victims with the personal circumstances of the offender, his level of culpability, his prospects of reform, and the broader interests of justice. Significantly, despite the continuing bitterness and pain expressed by the deceased's family, the Victim Impact Statement confirms that the family was informed of and is aware of the plea-bargaining process that culminated in the present conviction for manslaughter. This demonstrates that the accused person has not sought to evade responsibility but has instead subjected himself to the due process of the law and accepted the consequences of his conduct. 8.Reliance was placed on the case of Francis Karioko Muruatetu & Another v Republic [2020] KEHC 1390 (KLR), where the Supreme Court emphasized that sentencing ought to take into account mitigating factors including whether the offender is a first offender, the character of the offender, remorsefulness, and the possibility of reform and social re-adaptation. 9.The accused urges the Court to impose a sentence that recognizes the gravity of the offence while at the same time preserving the possibility of rehabilitation, reconciliation and eventual reintegration into society. 10.The Sentencing Policy Guidelines 2023 outlines the objectives of sentencing at paragraph 1.3.1 as follows: -Sentences are imposed to meet the set out sentencing objectives. There will be instances in which the objectives may conflict with each other, in so far as possible, sentences imposed should be geared towards meeting the objectives in totality. 11.The sentencing objectives in Kenya have been captured in the sentencing guidelines 2023 to be the following: -a.Retribution: to punish the offender for his/her criminal conduct in a just manner.b.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.c.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.d.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.e.Community protection: to protect the community by incapacitating the offender.f.Denunciation: to communicate the community’s condemnation of the criminal conduct.g.Reconciliation: To mend the relationship between the offender, the victim and the community.h.Reintegration: To facilitate the re-entry of the offender into the society. 12.I have considered the sentencing objectives in totality, the nature of the offence, its circumstances, the plea bargain agreement, mitigation, the remand period, the youthful age of the accused with a whole life ahead of him, the fact that the accused saved judicial time by pleading guilty upon entering into the plea bargain agreement, the fact that he is remorseful and the fact that the family of deceased is still bitter with him and all the other necessary factors. The accused also acknowledges his mistake which this Court can attribute to his anger after discoursing his hard-earned charcoal had been stolen and was again to be stolen by the deceased. 13.Despite the above, this court is of the view that the accused had no right to take away the life of the decease in the manner he did for whatever reason. Instead, he should have apprehended the deceased and presented him to the authorities and allowed the law to take its course. 14.That notwithstanding and whereas the accused entered into plea bargain agreement, I am of the considered view and hold that a retributive, deterrent and rehabilitative sentence is the most appropriate in the circumstances of this case and I therefore sentence the accused to an imprisonment term of six (6) years with effect from 11/08/2024, the date of the incident herein and when the accused person presented himself to the police and has been in custody since then. I have taken into account the provisions of section 333 (2) of the Criminal Procedure Code. 15.The convict has a right of appeal on sentence having entered into plea bargain agreement for which I convict him on his own plea of guilt. 16.It is ordered. This file is closed. SENTENCE DATED, SIGNED & DELIVERED AT MACHAKOS THIS 16TH JULY 2026.NOEL I. ADAGIJUDGEIn the presence of: