https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4591

**REPUBLIC OF KENYA** **IN THE HIGH KENYA AT VIHIGA** **CRIMINAL CASE NO. E004 OF 2026** **REPUBLIC PROSECUTION** **VERSUS** **JACKSON SHIKANGA LUVAKA……………………………………..1ST ACCUSED** **SAMUEL MULAMA SHIKANGA………………………………………2ND ACCUSED** **Coram: Before Justice R. Nyakundi** **M/s Leina for the State** **Mr. Wekesa, Advocate, for the Accused persons** **JUDGMENT** **A. Introduction** **1.** The two accused persons, Jackson Shikanga Luvaka (the 1st accused) and Samuel Mulama Shikanga (the 2nd accused), stand charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on the 8th day of January 2026, at Kipchekwen Village, Banja Location, in Hamisi Sub-County within Vihiga County, jointly murdered Derrick Andambi Luvaka. Both accused pleaded not guilty, and the matter proceeded to full trial. **2.** At the close of the prosecution case, this Court, by its ruling delivered on 11th May 2026, found that a prima facie case had been established and placed both accused on their defence pursuant to section 306(2) of the Criminal Procedure Code. The accused have since tendered their defence, and this is the judgment of the Court following the full trial. **B. The Prosecution Case** **3.** The prosecution called six witnesses. Their evidence, in summary, was as follows. **4.** PW1, Edith Khavere, the mother of the deceased, testified that on 8th January 2026 she was informed that her son had been attacked. She found him lying beside the road near the Banja MCA’s home, and he identified his assailants as Jackson (the 1st accused), Jackson’s wife Pamela, and their son Sammy (the 2nd accused), who had cut him using a jembe and a slasher. The deceased was taken to Vihiga County Teaching and Referral Hospital and admitted with cuts on both hands at the wrists, the head and the right eye. He died at the hospital on 10th January 2026. A post-mortem conducted on 24th January 2026 established the cause of death as excessive bleeding following assault with a sharp object. **5.** PW2, Jackline Shivuluka, a sister of the deceased, testified that she was informed that her brother was being beaten. He was admitted to hospital with both hands cut, and she urged him to accept the amputation of his hands recommended by the doctors. He died on 10th January 2026. She testified that, before his death, the deceased had stated that he had been beaten by the 1st accused, the 2nd accused and Pamela. **6.** PW3, Hesbon Imoli, a brother of the deceased, testified that he attended and witnessed the post-mortem examination conducted on 24th January 2026 and agreed with the pathologist’s opinion as to the cause of death. **7.** PW4, No. 124296 PC (W) Margaret Wachira, testified that on 8th January 2026 she and other officers proceeded to the scene, where they found the deceased with serious injuries — deep cuts on both wrists, the right leg and two toes. She testified that the deceased told her that he had been cut with a jembe by his brother Jackson and his son Samwel after he had questioned the 2nd accused regarding the theft of his maize. The scene was photographed and the deceased escorted to hospital, where he later died. **8.** PW5, Dr. Clinton Kigweyi, the pathologist, conducted the post-mortem examination. He formed the opinion that the cause of death was haemorrhagic shock following excessive bleeding after assault with a sharp object, and produced the post-mortem report as PExh1. **9.** PW6, No. 101057 PC (W) Christabel Omumalia of DCI Hamisi, the investigating officer, testified that the matter was reported at Serem Police Station, that the deceased had identified his attackers as the two accused and Pamela, and that the accused were arrested on 27th January 2026. She visited and photographed the scene, noting dried blood, but was unable to recover the weapons used. **10.** The course and outcome of the investigation were set out in the covering report of the investigating officer, PW6. Read together with the evidence on the record, that report discloses several matters material to the defences later raised. First, the deceased is recorded as having arrived at the 1st accused’s home on the morning of 8th January 2026 carrying a slasher and a sack, before the dispute over maize arose and escalated. Secondly, among the investigating officer’s own findings is that the 1st accused sustained an injury to his right hand during the incident, and that the weapons used in the assault were never recovered. Thirdly, following their arrest the accused were taken for mental assessment at Mbale Hospital and found fit to stand trial. These matters, emanating from the prosecution’s own investigation, fall to be weighed with the rest of the evidence and bear directly upon the defences considered below. **C. The Defence Case** **11.** Placed on their defence, both accused persons elected to give sworn evidence and denied the charge; the 1st accused additionally called independent witnesses in support of his case. The thrust of the defence was twofold: a denial that either accused participated in the killing of the deceased, and an assertion that it was the deceased who was the aggressor in the confrontation. In the alternative, learned Counsel Mr. Wekesa canvassed the defences of self-defence and provocation. **12.** The 1st accused (DW1), in his sworn evidence, categorically denied the charge and maintained that he did not participate in the unlawful killing of the deceased. He testified that on the material day he woke and proceeded to his farm, where he carried out his usual farming activities. Later in the day his wife informed him that the deceased come to their homestead and was armed. Concerned by the report, he made his way to the homestead, where he found the deceased was armed with a panga and was behaving aggressively. He stated that the deceased attempted to harm him and that, in the ensuing commotion, the deceased sustained injuries before being taken to Hamisi Hospital and later referred to Mbale Hospital. Under cross-examination he clarified that, on his return from the farm, it was the deceased who attacked him; that he himself sustained injuries and suffered a temporary concussion for which he was taken to hospital; and that he neither inflicted any injury upon the deceased nor was in any way involved in his death. **13.** The 2nd accused (DW2), also on oath, identified himself as the son of the 1st accused and a nephew of the deceased. He testified on 8th January 2026 that he had left home and was later told by his mother that the deceased had come to their home demanding maize, which was unavailable, his mother informed him that the deceased was armed with a panga. Shortly thereafter his father arrived home and questioned the deceased as to why he was carrying the weapon, whereupon the deceased turned on his father and attacked him, inflicting injuries. The 2nd accused testified that he and his mother raised an alarm in an effort to protect the 1st accused. While he acknowledged that a confrontation occurred between the deceased and the 1st accused, he firmly denied taking any part in it, and denied assaulting the deceased or contributing to his death. **14.** On this evidence the defence submitted that the prosecution had failed to displace the presumption of innocence; that the deceased was the aggressor in the confrontation; and that the offence of murder had not been proved beyond reasonable doubt. The defence accordingly urged the Court to acquit both accused or, in the alternative, to return a verdict of manslaughter. **D. Issues for Determination** **15.** From the evidence and the rival positions, the issues that fall for determination are: (a) whether the prosecution has proved, beyond reasonable doubt, each of the ingredients of the offence of murder against each accused; and (b) whether the defences of self-defence and of provocation, or either of them, avail the accused so as to result in an acquittal or in a conviction for the lesser offence of manslaughter. **E. Burden and Standard of Proof** **16.** It is a cardinal principle of our criminal law that the legal burden of proving the guilt of an accused person rests on the prosecution throughout and, subject to certain statutory exceptions, never shifts. That burden flows from the presumption of innocence guaranteed by Article 50(2)(a) of the Constitution, which entitles every accused person to be presumed innocent until the contrary is proved. The classic statement remains that of Viscount Sankey L.C. in Woolmington v Director of Public Prosecutions [1935] AC 462, that the duty of the prosecution to prove the prisoner’s guilt is the “golden thread” running throughout the web of the criminal law. **17.** The standard to which the prosecution must prove its case is proof beyond reasonable doubt. As Denning J. explained in Miller v Minister of Pensions [1947] 2 All ER 372, that standard does not import certainty beyond the shadow of a doubt, but proof so strong as to leave only a remote possibility in the accused’s favour which can be dismissed with the sentence “of course it is possible but not in the least probable.” Where a reasonable doubt remains, the accused is entitled to its benefit and to an acquittal. **18.** The defences raised do not displace that burden. Where an accused raises self-defence or provocation, he bears no more than an evidential burden of laying a foundation for the defence on the evidence; once such a foundation appears, whether from the prosecution or the defence evidence, the persuasive burden remains on the prosecution to negative the defence and to establish guilt beyond reasonable doubt. It is against these settled principles that the evidence must be weighed. **F. The Ingredients of the Offence of Murder** **19.** The ingredients which the prosecution must establish in a charge of murder is well settled. In **Anthony Ndegwa Ngari v Republic [2014] eKLR,** they were restated as: (a) the fact of the death of the deceased; (b) that the death was caused by an unlawful act or omission; (c) that it was the accused who committed the unlawful act or omission which caused the death; and (d) that the accused did so with malice aforethought. I consider each in turn. **(i) The fact and cause of death** **20.** That Derrick Andambi Luvaka is dead is not in dispute. PW1, PW2, PW3, PW4 and PW6 all spoke to his death on 10th January 2026, and PW5, the pathologist, established through the post-mortem report (PExh1) that the cause of death was haemorrhagic shock following excessive bleeding after assault with a sharp object. The first ingredient is proved beyond reasonable doubt. **21.** The evidence discloses that the deceased was admitted with deep cuts to both wrists and that amputation was recommended and undertaken, and that he died in the course of, or following, that treatment. To the extent it might be suggested that the amputation, or the deceased’s inability to meet the cost of treatment, broke the chain of causation, the suggestion is without merit. Under section 213 of the Penal Code, a person is deemed to have caused the death of another notwithstanding that his act was not the immediate or sole cause of death, including where the injury inflicted would not have caused death had the injured person submitted to, or received, proper medical treatment. At common law the test is whether the original wound remained an operative and substantial cause of death (R v Smith [1959] 2 QB 35). Here the fatal haemorrhage flowed directly from the deep cuts inflicted on the deceased; the wounds were the operative and substantial cause of death, and the causal chain is unbroken. **(ii) Whether the death was unlawfully caused** **22.** Every homicide is presumed to be unlawful unless it is excused or justified by law. The deceased died as a result of a deliberate assault with a jembe and a slasher, inflicting deep cuts to his wrists and body. No lawful justification appears on the face of that assault; whether the pleaded justifications of self-defence and provocation displace its unlawful character is considered separately below. Subject to that, the second ingredient is established. **(iii) Whether it was the accused who committed the act — identity and participation** **23.** There were no eyewitnesses to the assault other than the participants. The prosecution’s case on identity rests principally upon the dying declaration of the deceased, spoken to by PW1 and PW4 (and referred to by PW2 and PW6), in which the deceased named the 1st accused, the 2nd accused and Pamela as the persons who cut him, following a dispute over maize. **24.** A dying declaration is admissible under section 33(a) of the Evidence Act as an exception to the rule against hearsay, and, in Kenya, its admissibility does not depend on the deceased having been under a settled, hopeless expectation of death at the time. The governing principles were restated by the Court of Appeal in *Philip Nzaka Watu v Republic [2016] eKLR* and, long before it, in *Pius Jasunga s/o Akumu v R (1954) 21 EACA 331* and *Choge v Republic [1985] KLR 1*: such evidence must be received with caution, because it is not tested by cross-examination and because the violence and confusion attending the death may impair the deceased’s perception; while corroboration is not a strict rule of law, it is generally unsafe to found a conviction on an uncorroborated dying declaration, and the Court must be satisfied that the deceased could not have been mistaken in identifying his assailants. **25.** Applying that caution, I am satisfied that the dying declaration in this case may be safely acted upon. First, this is a case of recognition rather than identification of strangers: the persons named were the deceased’s own close relations and neighbours — the 1st accused his brother (or step-brother) and the 2nd accused his nephew — well known to him, greatly reducing the risk of mistake. Secondly, the declaration was consistent: the deceased gave the same account, naming the same assailants and the same weapons (a jembe and a slasher), to more than one witness on more than one occasion, including to PW4, a police officer, at the scene. Thirdly, it is corroborated by the medical evidence of PW5, the nature and situation of the injuries — deep cuts to the wrists — being entirely consistent with the use of a jembe and a slasher as the deceased described. Fourthly, the declaration was made shortly after the assault. The defence contention that the deceased was in truth set upon by members of the public, and not by the accused, does not displace this finding. The deceased did not attribute the attack to a faceless crowd; he consistently named three specific persons well known to him, among them his own brother and nephew. It is inherently improbable that a man mortally injured would, in identifying his attackers, exculpate an anonymous mob while falsely implicating his close relations, and no independent evidence was led to substantiate the suggestion of a public attack. I am satisfied that the deceased was not, and could not have been, mistaken, and that his dying declaration reliably identifies the 1st and 2nd accused as among his assailants. **26.** The two accused acted together. Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each is deemed to have committed the offence: section 21 of the Penal Code; and see *Dracaku s/o Afia v R (1963) EA 364*. On the evidence, the 2nd accused first confronted the deceased and, when the 1st accused arrived, the two jointly assaulted him with a jembe and a slasher, cutting his hands. The 2nd accused’s evidence that he did no more than raise an alarm to protect his father, and took no part in the assault, has been weighed. It is, however, contradicted by the dying declaration, in which the deceased named “Sammy” among those who cut him, and which I have found reliable; and it is of note that the 2nd accused places himself squarely at the scene of the confrontation. Preferring the consistent and corroborated declaration of the deceased to his denial, I find that the 2nd accused was not a mere bystander but a participant in the joint assault. The concerted participation of both accused in the same brutal attack, upon the same victim, with like weapons, establishes a common intention, so that each is answerable for the acts of the other. The third ingredient is proved against both accused. (Pamela, though named by the deceased, is not before the Court and no finding is made against her.) **(iv) Malice aforethought** **27.** Malice aforethought is defined by section 206 of the Penal Code and includes an intention to cause the death of, or to do grievous harm to, any person, as well as knowledge that the act causing death will probably cause death or grievous harm, accompanied by indifference whether such harm is caused or not. It is a state of mind ordinarily to be inferred from the surrounding circumstances. **28.** In the well-known case of *Rex v Tubere s/o Ochen (1945) 12 EACA 63*, the Court identified the factors from which the requisite intent may be inferred: the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, and the conduct of the accused before, during and after the assault. Here, the accused employed a jembe and a slasher — crude but plainly lethal implements; they directed sustained and severe blows that severed or all but severed the deceased’s hands at the wrists, and inflicted further cuts to the head, the right eye and the lower limbs. An assault of that ferocity, with such weapons, upon so vulnerable a victim, admits of only one inference: that the accused intended, at the least, to do the deceased grievous harm, or acted with knowledge that death or grievous harm would probably result and with indifference to that consequence. On these facts malice aforethought would ordinarily be inferable; whether it is negatived, or the offence reduced, by the defences of self-defence and provocation is the question to which I now turn. **G. The Defence of Self-Defence** **29.** By section 17 of the Penal Code, criminal responsibility for the use of force in the defence of person or property is to be determined according to the principles of the English common law. The locus classicus is Palmer v R [1971] AC 814, where the Privy Council held that a person who is attacked, or who honestly and reasonably believes he is about to be attacked, may use such force as is reasonably necessary to defend himself; what is reasonable is to be judged in the heat of the moment and not by nice measure, but force which is clearly excessive in the circumstances cannot be justified. **30.** Our Courts have applied this consistently. In *Ahamad Mohamed Omar & 5 others v Republic [2014] eKLR* and *Roba Galma Wario v Republic [2015] eKLR*, it was affirmed that the essential element of self-defence is an honest belief, founded on reasonable grounds, that the accused was being attacked or was in imminent danger of attack, coupled with the use of no more force than was reasonably necessary to meet that danger. **31.** Measured against these principles, self-defence taken as a complete answer to the charge cannot succeed — but the material bearing upon it cannot be dismissed as readily as the prosecution urged. Significantly, the deceased’s having been armed, and the 1st accused’s having been injured, are not matters resting on the defence evidence alone. On the prosecution’s own investigation, the deceased arrived at the home carrying a slasher, and the investigating officer’s findings record that the 1st accused sustained an injury to his right hand during the incident. Those features lend real support to the accused’s account that a violent physical confrontation took place and that the 1st accused did not emerge from it unscathed. To that extent an evidential foundation for the defence has been laid which the prosecution must answer. **32.** Nonetheless, self-defence as a complete justification, resulting in an acquittal, requires that the force used be reasonably proportionate to the threat faced. Even accepting that the deceased was armed and that a fight ensued, the response — the severing of both of the deceased’s hands at the wrists by two men, with further cuts to his head, eye and legs — went beyond what was reasonably necessary to disarm or repel him, the more so as the deceased thereafter broke off and fled the home. On that ground the plea of self-defence cannot result in an acquittal. **33.** But it does not follow that the accused are guilty of murder. The excessive use of force in the defence of the person, where a genuine or apprehended attack has been over-reached, may reduce the offence from murder to manslaughter rather than justify an acquittal (*R v Ngolaile s/o Lenjaro (1951) 18 EACA 164*; *R v Shaushi (1951) 18 EACA 198*; and see *Palmer v R (supra)*). Given the evidence, from the prosecution’s own investigation, that the deceased came armed and that the 1st accused was injured in the affray, this is not a case in which that possibility can be excluded. It falls to be considered together with the defence of provocation, to which I now turn. **H. The Defence of Provocation** **34.** Provocation stands on a different footing: it does not justify or excuse a killing, but, where it is made out, it reduces what would otherwise be murder to manslaughter. Section 207 of the Penal Code provides that a person who unlawfully kills another in circumstances which would otherwise constitute murder, but who does the act which causes death in the heat of passion caused by sudden provocation and before there is time for his passion to cool, is guilty of manslaughter only. **35.** Section 208 defines provocation as any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self-control and to induce him to commit an assault of the kind committed. The classic statement is that of Devlin J. in R v Duffy [1949] 1 All ER 932: provocation is some act, or series of acts, done by the deceased to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind. **36.** Three requirements emerge. There must be (a) a wrongful act or insult amounting to provocation; (b) a sudden and temporary loss of self-control on the part of the accused, actual and such as would be experienced by an ordinary person of the accused’s community placed in the same situation; and (c) a retaliation proportionate to the provocation, the act of killing being done in the heat of passion before there was time for passion to cool. The mode of resentment must bear a reasonable relationship to the provocation, and in assessing this the Court has regard to the instrument used and the number and severity of the blows (Mancini v Director of Public Prosecutions [1942] AC 1). **37.** Testing the facts against these requirements, and giving proper weight to the whole of the evidence including the findings of the investigation, I am unable to conclude that the defence of provocation has been excluded. As to the first requirement, the provocation relied upon is not merely a verbal disagreement over maize. On the evidence the deceased came to the home armed with a slasher, pressed his demand in the face of refusal, and — on the account of the 1st accused, corroborated by the injury he sustained to his hand — turned upon and attacked the 1st accused. A sudden, armed confrontation of that character is capable of amounting to a wrongful act sufficient to deprive an ordinary person, of the accused’s community and placed in the same situation, of the power of self-control. **38.** As to the second requirement, the quarrel escalated rapidly, from a demand for maize to a violent affray in which the 1st accused himself was wounded, and the fatal injuries were inflicted in the course of that same affray and not after any appreciable interval in which the passion might cool. That sequence is consistent with a sudden and temporary loss of self-control in the heat of passion, rather than with a considered or premeditated killing. **39.** As to the third requirement, it is true that the retaliation — the cutting of the deceased’s hands and body — was severe, and that the instrument used and the number and gravity of the blows are matters which, on the authority of *Mancini v Director of Public Prosecutions [1942] AC 1*, bear upon whether the mode of resentment was proportionate. Were proportionality the sole test, the plea might be doubted. But the burden does not lie on the accused to establish provocation; it lies on the prosecution to negative it beyond reasonable doubt. And it has long been recognized in this jurisdiction that, once death is caused in the heat of passion upon legal provocation, the offence is manslaughter notwithstanding that the retaliation was disproportionate or that a lethal weapon was used, the disproportion going to sentence rather than to the availability of the defence (*Republic v Hussein s/o Mohamed [1942] EACA 66*). **40.** Weighing all of this, and mindful that the deceased came armed and that the 1st accused was injured in a sudden and violent quarrel, I am not satisfied that the prosecution has excluded, beyond reasonable doubt, the possibility that the accused acted in the heat of passion upon sudden provocation, or in the excessive repulsion of an attack. The benefit of that doubt, which goes to the element of malice aforethought, must be resolved in favour of the accused. The offence is accordingly reduced from murder to manslaughter. **I. Determination** **41.** Drawing the threads together: the prosecution has proved beyond reasonable doubt the fact and cause of the death of Derrick Andambi Luvaka; that his death was unlawfully caused; and that it was the 1st and 2nd accused who, acting with a common intention, inflicted the fatal injuries — I have rejected their bare denial of participation, preferring the consistent and corroborated dying declaration of the deceased. I am not, however, satisfied that the prosecution has proved malice aforethought to the requisite standard, for it has not excluded the defences of provocation and of excessive force in self-defence, which are borne out by the prosecution’s own evidence that the deceased came armed with a slasher and that the 1st accused was injured in a sudden and violent quarrel. In those circumstances the accused are entitled to the benefit of the doubt on the question of malice, and the proper verdict is one of manslaughter, not murder. **42.** Accordingly, and in exercise of the power under section 179 of the Criminal Procedure Code to convict of a lesser cognate offence upon a charge of murder, I find the 1st accused, Jackson Shikanga Luvaka, and the 2nd accused, Samuel Mulama Shikanga, each not guilty of murder contrary to section 203 as read with section 204 of the Penal Code, but guilty of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code, and I convict each of them accordingly. **Verdict on Sentencing** 1. The twoaccused persons now convicted to a lesser offence of manslaughter contrary to Section 202 of the Penal Code are to be punished under Section 205 of the Penal Code. Pursuant to Section 329 of the Criminal Procedure Code, the Court called for evidence in mitigation. Learned Counsel Mr. Wekesa submitted that the guiding principle on sentencing is that the accused persons be rehabilitated by the Court taking the following elements on mitigation: 2. *First offender: The accused persons are first offenders. They have no previous convictions. We pray that the Court considers a non-custodial sentence or the lowest possible custodial term.* 3. *Remorse and repentance: The accused persons are remorseful from what happened. They never intended to cause the death of the deceased. The incident arose from provocation. The same was not planned, they have expressed regret to the family of the deceased and prays for forgiveness.* 4. *Family and Social Obligations: The 1st accused person is a family man, married with children, being the 2ndaccused person and three others. That the three other children are school going, being students at KAPSOKOROPRIMARY SCHOOL, who depend on him for school fees, food and shelter. That his wife is a housewife and as such a custodial sentence will punish the innocent family members.* 5. *Employment and contribution to the Society: The accused persons are small scale farmers and also boda boda riders. They are productive members of the society. A custodial sentence will render his family distortable and they will lose their livelihood.* 6. Whereas the Prosecutor on the other hand, filed his comments on aggravating factors and placed reliance on the surrounding circumstances in which the deceased met his death which should play a key factor in exercise of discretion to impose an appropriate sentence so that justice can be found to the victims of the offence and the community at large. 7. The nucleus principles of sentencing are captured in Clause 1.2 of the Judiciary Sentencing Guidelines (2003) which provides as follows: 8. ***Proportionality:*** *The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender.* 9. ***Equality/Uniformity/Parity/Consistency/Impartiality:*** *The same sentences should be imposed for same offences committed by offenders in similar circumstances.* 10. ***Accountability/Transparency:*** *The reasons behind the determination of sentence should be clearly set out and in accordance to the law and the sentencing principles laid out in these guidelines.* 11. ***Inclusiveness:*** *Both the offender and the victim should participate in and inform the sentencing process.* 12. ***Totality of the Sentence:*** *The sentence passed for offenders* *convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole.* 1. The objective of sentencing includes deterrence, incapacitation, retribution, rehabilitation, and restorative. In meting out punishment the Court would endeavor to ensure that the offender does not commit similar offences again and the public or the community should be dissuaded from committing similar offences. It may be necessary for the offender to be removed from the community to avoid repeat of such an offence. 2. Further, the punishment must be proportionate to the offence committed, the gravity of the offence must not be overlooked. The impact of the offence as well as the responsibility of the accused must be considered. (*Also See the Sentencing Police Guidelines 2023).* 3. There is no dispute that the death of the deceased could have been avoided and now it has left an impact on his family, friends, and the community at large. The emotions following the death of any human being does disrupt the configuration of emotions which come with it for those who associated with him during his lifetime and now he is not home. This was a joint enterprise by the accused persons now convicts who could have taken evasive steps to avoid excessive violence against the deceased. This Court has a statutory duty to sentence the accuseds/convicts taking into account the seriousness of the offence or the combination of the offence and one more offence associated with it. To get how the assessment of seriousness is determined it is worthy outlining the key stages I progress through in arriving at a fair and proportionate sentence each one of them would serve. 4. The starting point would be Section 205 which prescribes the maximum punishment for the offence of manslaughter being life imprisonment. From the verdict of the main case, a finding was made that there was no premeditation or malice aforethought on the part of the accused persons. The second aspect in the facts of this case is that the offence of manslaughter was committed by two persons who were well known to the deceased and they should not have been the perpetrators of the crime for indeed self defence in this case was minimal. This Court also bears in mind the mitigating factors offered by the learned Counsel Mr. Wekesa on their behalf which is one of the fundamental aspects in sentencing a convicted offender. 5. The life sentence of manslaughter can be constructed with determinate sentences in several respects. Firstly, in general parliament establishes the maximum penalty to the most serious instances of the offence and the Sentencing Policy Guidelines of the Judiciary 2023 through its offence specific guidelines a series of objectives and principles based on harm and culpability. Secondly, a trial Court must follow the sentencing guidelines unless it is in the interests of justice not do so or the guidelines are not relevant to the case. However, it is a well-known fact, that the law seems to allow greater discretion to a trial Court determining the minimum term for the offence of manslaughter combining the sentencing guidelines. 6. The offences of manslaughter and murder are considered to fall within the violation of Article 26 of the Constitution on the right to life which protects and guarantees that every citizen’s right to life shall not be terminated unless as per the law established. As I consider the sentence of this case, I am inspired and ordained by the following statements: *Murder is a very serious offence. Society at large and the relatives of the deceased are entitled to expect that the murderer will serve a stiff sentence befitting the seriousness of the crime and the blameworthiness of the perpetrator. Civilization has, however, long progressed beyond a brand of justice that is more in keeping with Hammurabi’s legal code. It plainly does not follow that, because in every crime of murder human life is lost, the sanction to be pronounced by the Court on the offender after trial must always be the exact same … Modern penology does not conflate the consequence to the victim with the culpability of the offender* 1. In this analysis, it is my considered view that culpability of the accused persons now convicts outweighs the mitigation factors shared to the Court. It is open to the citizens of this country to be bound and governed by the Constitution norms and standards in every aspect to their life if we accept and the convenant of the Constitution incidence of this nature in which fellow citizen’s life is terminated prematurely without extenuating circumstances should be condemned and a proportionate sentence passed to that effect. I therefore in my part exercise discretion by imposing a sentence of 35 years imprisonment for this offence based on the various factors discussed elsewhere in this judgment. The sentence so imposed shall take effect from 9th February 2026. Orders accordingly and 14 days right of appeal explained to the accused persons/convicts. **DATED, SIGNED AND DELIVERED THIS 17TH DAY OF JULY 2026.** **…………………………..………** **R. NYAKUNDI** **JUDGE**