https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8750

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CRIMINAL CASE NO. 203 OF 2017** **(FORMERLY MACHAKOS HCRC 35&36 OF 2016, KITUI HCRC 26 OF 2016 & MILIMANI HCRC 29 OF 2018)** **REPUBLIC ……………………………………………………PROSECUTOR** **VS** **GILBERT MAINA………………………………………………1ST ACCUSED** **PAUL ODOYO NGOMA ………………………………….....2ND ACCUSED** SENTENCE RULING 1. **Gilbert Maina and Paul Odoyo Ngoma, were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 of the Laws of Kenya; on the 24th and 25th day of August 2016 at Mwingi District Hospital, in Mwingi Sub County within Kitui County, jointly with others not before Court, murdered Ngadi Malia** 2. After a full trial spanning about 10 years , through Kitui, Milimani, Machakos and Makueni Courts, through several judges, the matter came to an end in the High Court vide the judgment dated 24th April 2026 where the court stated: ***From the totality of the foregoing, the prosecution has proved beyond reasonable doubt that each of the accused persons was an accomplice, each of the accused persons herein was an accomplice in his own right in the unlawful killing of Ngandi Malia. That the manner in which he was killed established malice aforethought. Each of the accused is therefor guilty as charged.*** ***In the circumstances... the case for the prosecution is proved beyond a reasonable doubt that. I find each of them guilty as charged and convict each accordingly.*** 1. The only issue for determination now is what sentence in appropriate in the circumstances of this case. 2. I sought Pre sentence Reports as provided for by s. 2 of the Probation of Offender’s Act Cap 64. ***"pre-sentence inquiry reports" means the reports on accused persons or offenders prepared by probation officers under this Act or any other law in force for purposes of criminal justice administration;*** 1. These were filed by Mr. Odero Probation and After Care officer, Makueni. These reports are detailed and in my view well balanced. They paint a picture of each of the convicts, their back ground, family and community ties, life after the offence and the arraignment, the victim impact statement. 2. Thereafter we held a mitigation and sentence hearing for purpose of hearing from the prosecution and the defence. 3. Mr. Musyoki for the state reiterated how the deceased a 25 years old man was picked from his house in Mwingi town, driven to the outskirts of Kitui on the Kitui/ Garissa Road, shot him and left him for dead, and when he survived those gunshots, they followed him to the hospital ward at Mwingi where they shot him until he was dead. He submitted that the accused persons did not deserve any mercy. 4. Mr. Muchoki for the first convict making reference to the PSR told the court that the accused still maintained his innocence.The court was referred to Article 50(2) (p) of the Constitution that the convict was entitled to the least severe sentence and urged the court to grant a lenient sentence. The Court was referred to **Kemboi v R Rev E0370 of 2025 KEHC 17293 [2025]** for the proposition for the non-custodial sentence. 5. It was submitted that the convict was a 1st offender who during the period he was out on bond had undertaken further studies, Masters in Public Administration, Masters in Sociology and is currently a 4th Law student at the UON, That he has dependents who would be prejudiced by a custodial sentence. 6. Further that he holds leadership roles at his church and his child’s school, a member of a school Board of Management and a criminology lecturer at one of the Universities in Kenya. 7. That he never missed court. 8. That he had suffered greatly, having been interdicted from the Police force, was hypertensive and has arthritis. 9. Additionally, Dr. Irungu Kang’ata submitted that he appeared for the convict Gituku (the 1st accused) alongside Mr. Muchoki. He urged the court to consider the broader interests of justice and to differentiate between a murder committed in cold blood and one committed by a police officer in the course of his duty. That the Gituku did not know the deceased personally and did not benefit in any way from the death of the deceased; that there was no criminal enterprise and that the PSR indicated that the family of the deceased confirmed that he had a criminal record and that even though this was no justification it mattered in sentencing. It was submitted that there were many police officers in the matter. Others absconded but Gituku chose to face the court. That he deserved leniency. 10. The Court was referred to **R Vs Titus Ngamau Musila [2018] eKLR** where a police officer acted during police operations, no vendetta. Was given 12 years’ imprisonment. 11. The court was also referred to cases from the UK on the defence of self defence: **Palmer vs R [1971] AC 814**; on police actions: split second decision, operational stress and imperfect judgment; **Republic v Clegg [1995] 1 AC 482** on the split second action of a road block officer leading to the shooting of a civilian. 12. In addition, counsel testified to the good character of the convict telling the court that he was at one time his body guard. 13. For the 2nd convict Mr. Onyango submitted that the sentence of death would be on the higher side and also cited Article 50(2) (p) of the Constitution. He submitted that the 2nd accused (convict) was 57 years old, that he had three years to go to retire and a lengthy sentence would be equivalent to a death sentence. It was submitted that the period the case has been in court has caused his family agony and trauma and one of his children had suffered depression due to the drastic change in life style since their father’s salary was suspended. That he was also the sole provider for his 80 year old mother. He was a man of God, had suffered high blood pressure and was on medication. 14. That regarding contents in the report that one of the family members of the deceased said she had been threatened during the trial, the defence was not aware of such a complaint. 15. On the issue of compensation /reconciliation as raised in the PSR he submitted that the nature of the matter was such that the convicts who considered themselves innocent had no obligation to start any kind of negotiations pending the hearing and determination of the matter. That if any such thought had crossed the mind of the prosecution it should have come from them. 16. That in the 10 years that the accused persons have been coming to court they have never absconded. That they waited for the judgment for two years. That the 2nd convict regretted the events that led to the death of the young man, that he sought the leniency of this court. 17. In rejoinder the Prosecutor urged the court to distinguish the cases cited on the proposition that the convicts acted in self defence, that there was no operational stress in this case and that ***Titus Ngamau*** was very different from this case. **Analysis and Determination** 1. Section 204 of the Penal Code provides that any person found guilty of the offence murder shall be sentenced death. However, the mandatory nature of the sentence as provided by this section was taken away by ***Muruatetu 1***, leaving the court with some discretion. 2. Sentencing must be based on the principles of fairness, justice, proportionality and commitment to public safety. 3. In the first edition of the Judiciary Sentencing Policy Guidelines the then Chief Justice made this observation; *Sentencing has been a problematic area in the administration of justice. It is one of those issues that has constantly given the Judiciary a bad name – and deservedly so. Sometimes out rightly absurd, disproportionate and inconsistent sentences have been handed down in criminal cases. This has fuelled public perception that the exercise of judicial discretion in sentencing is a whimsical exercise by judicial officers.[[1]](#footnote-1)* The Hon Justice Msagha Mbogholi stated this in the same guidelines *Reaching a fair decision in sentencing is neither an easy nor straightforward process; several considerations come into play. While sentences are defined by law, the measure of what is an appropriate sentence in a given case is left to the discretion of judges and magistrates. As Justice McArdle is famously quoted saying,* ***“Anyone can try a case. That is as easy as falling off a log. The difficulty comes in knowing what to do with a man once he has been found guilty.”*** *Sentencing is as important as all other aspects of a criminal trial. Sentencing in Kenya has been marked by instances of unwarranted disparities, lack of certainty and transparency in decisions, disproportionate sentences and lack of uniformity in sentences with respect to same offences committed under similar circumstances. In other respects, lack of sufficient public education has contributed to misconceptions about sentencing, especially the undue focus on custodial sentences to the exclusion of other appropriate forms of sentences.[[2]](#footnote-2)* 1. The Judiciary Sentencing Policy Guidelines 2023 state the following with regard to murder: *5.2.2 The harm caused by such an offence is immeasurable. The sentence is not a measure of the value placed on the life of the victim. Therefore, the assessment of aggravating and mitigating features relating to the offence focusses on culpability. However, the victims’ family may wish to make a statement to the court about the impact of the offence.* *5.2.3 In addition to the generic features contained in the GATS, (Guided Approach to Sentencing)* *features particularly relevant to murder may include but are not limited to:* *5.2.4 Aggravating Factors in Murder Cases:* *A significant degree of* ***planning or premeditation****.* *The* ***mental or physical suffering inflicted upon the victim before death****.* *Factors such as the* **type of weapon used***, torture or inhuman or degrading treatment prior to death will be relevant.* *The use of* ***duress*** *or* ***threats*** *to enable the offence to take place.* *The* ***vulnerability of the victim*** *e.g., due to age or disability.* *The fact that the victim was providing a public service or performing a public duty.* *Multiple* ***victims*** *or* ***multiple perpetrators****.* *Where the offence involved* ***an abuse of trust.*** *The* ***relationship between the victim*** *and the accused should be carefully considered.* *Offence was motivated by, or there was demonstrated hostility to the victim based on his or her race, gender, sex, sexual orientation (or presumed sexual orientation), pregnancy, marital status (so called ‘honour killings’ for example), health status (e.g., murder occurred because of the HIV status of the victim, or albinism), ethnicity, culture, dress, language, birth, or religious orientation (or presumed religious orientation).* *A history of assaults, threats, or coercion upon the same victim.* ***Absence of self-defence or provocation****.* *The offence involved deliberate drugging or stupefying of the victim.* ***Proven abduction or kidnapping of the victim before the murder was committed****. Where a demand for ransom was made, signifying a financial motive.* *Concealing, destroying, or dismembering the body.* *Where the murder was conducted in furtherance of a ritualistic practice such as witchcraft.* *5.2.5 Mitigating features relating to murder might include:* ***Lack of premeditation****.* *The* ***offender suffered from a mental disorder*** *or* ***mental disability which lowered his degree of blame****.* *In a case of* ***joint enterprise****, the* ***role the offender played may be lower than his co-accused****. For example, in the resentencing of the Applicants in* ***Francis Karioko Muruatetu & 6 others v Director of Public Prosecution [2019] eKLR*** *the Judge categorised the offenders into four categories based on their culpability. The first category involved the architects of an offence e.g., those who financed the killing, the second category involves offenders who ensnared the deceased into his death, the third category is the henchmen, those who carried out the brutal killing and the fourth category involves offenders involved in the cover up of the offence by attempting to silence witnesses. The Judge sentenced the third category with the highest term of imprisonment and graduated the term down for the other categories.* *That the offender was provoked.* *That the offender acted to any extent in self-defence or in fear of violence.* *The age of the offender.* 1. In this Muruatetu [2019] the court meted sentences ranging between 30 to 50 years imprisonment according to the roles each of the applicants performed in the commission of the murder. In view of the above, in this case one could argue that the convicts performed different roles, however it emerged from the evidence that their equal role was that of accomplices to the killing. 2. I was referred to **Kemboi v R KEHC-2025-17293 [2025]**where the court stated; ***In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -*** ***a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.*** ***b) Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.*** ***c) Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.*** ***d) Protection of the community: - where the offender is likely to pose a threat to the community.*** ***e) Offender’s responsibility to third parties: - where there are people depending on the offender.*** ***Further to the aforementioned, the Community Service Orders Act makes it possible for courts to issue an order requiring the offender to perform community service. This option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works***. 1. This was a revision case whose facts are not similar to this case. 2. This offence would not be suitable for a community service order as it would not attract a sentence of three years. 3. I have carefully considered the Pre-sentence reports dated 14th May 2026. Each of the convicts has been an exemplary citizen since committing the offence. Each of the reports is persuasive of the convicts character post the offence. Each report speaks to the voice of the secondary victims thus; *He was the last born among seven children of his late mother, one Malia Ngandi, consisting of four (4) sons and three (3) daughters. He was only 25 years old when he was murdered in cold blood and still single with no dependents. After the death of his mother, his uncle gave them a piece of land in Kanyonyoo location as part of their mother's inheritance, where they settled. As part of this inquiry, secondary victims, namely the deceased's siblings, the deceased's uncle's late wife, and other relatives, were interviewed. They all conveyed deep emotional trauma arising from the incident. They expressed concern over the offenders' apparent lack of empathy for the deceased following the brutal nature in which they executed the murder. One of the siblings of the deceased, who was put under victim protection, refused to give an interview, saying that she is still traumatized and afraid of the offenders who once threatened to harm or even eliminate her, as she was the key eyewitness in the murder of her brother, and thus, the potential for re-victimization remains a significant concern to her and the rest of the family. The sibling who witnessed the horror killing inside Mwingi level 4 hospital avoids all government officers and has lost faith in the security organs of the state after witnessing a police officer kill her brother in front of a ward full of admitted patients. Although the family acknowledged that the deceased may have been involved in some criminality, which is possibly the motive behind the alleged offence, his brutal murder cannot be warranted based on his alleged offence. They revealed that the accused and another sibling were convicted of breaking into their uncle's mansion and stealing from therein. They were jailed for three years, ....* *Their wish is that the offenders face the full force of the law since nothing they do will bring their kin back to life.* 1. The good report does not take away the fact that about 10 years ago the convicts together with others , picked the deceased from his house, took him to a place, shot him in the head, left him for dead, he survived, was taken to hospital. They followed him there and shot him, 17 gunshots. He was unarmed, injured, in a hospital bed, in the company of his sister. A life was cut short and it is evident that the impact of the offence still runs deep. 2. I heard counsel for the convicts. I looked at the authorities cited and they are indeed distinguishable. 3. The ***Titus Ngamau Musila*** case I was referred to was appealed against, the sentence was upheld but the Court of Appeal in **Titus Ngamau Musila Katitu v Republic [2020] eKLR observed;** *Upon convicting the appellant of murder the learned Judge in a whooping 18 page ruling on sentence, quite uncharacteristically imposed on the appellant 15 years imprisonment, directing that 12 years of which would be served in prison “to act as a warning to any police officers who takes the life of anybody and to appease the family of the victim…of the 12 years, the convict shall be given credit for a period from 1st September, 2014 to 29th January, 2016 being the pre-conviction period as already served…” and 3 years thereafter to be on probation to rehabilitate and correct the appellant “and to satisfy his supporters that their cry has been taken into account* ***”.*** 1. I have been urged to sentence the convicts to lenient sentence similar to this one. However, a reading of the case will reveal that the facts were different and the circumstances upon which the sentence was based were different. In addition, the CoA urged that court’s follow the Sentencing Policy Guidelines even as they exercise discretion. 1. Further, I found in the Court of Appeal judgment its observations on the the court referred to as ***the blue code of silence*,** which I found to be instructive as that was evident in this case.The court stated; *The* ***“blue code of silence”*** *is a common phenomenon, spanning across different countries and police cultures in America, Europe, Asia and even Africa. It is the unwritten rule according to which police officers never provide incriminating information about their colleagues; to close ranks in silence and to cover up knowledge of a fellow officer’s wrongdoing with a collective blanket of self-preservation, a feeling of esprit de corps among officers who by and large depend on each other for their very risky lives as they confront the violent and hostile world of policing and crime. This background is important in our consideration of this appeal because the police in Kenya, as we shall demonstrate in this case as in others before it, has, in certain circumstances engaged in the practice of covering up for each other.* 1. The Court of Appeal went on to cite the following reports ***;*** *For example, a report by Kenya Human Rights Commission headed, ‘Kenya’s scorecard on security and justice: Broken promises and unfinished business’, July 2017 at page 32 states:* *“However, the IPOA has faced a number of challenges. First, the success of the IPOA is dependent on total cooperation from the police they are investigating. Often the police fail to provide adequate cooperation for IPOA to prosecute police officers allegedly responsible for committing crimes. In March 2016, IPOA released a report stating that police deliberately bungle some of their investigations in order to protect fellow police officers…”* *Similarly, the IPOA Board End Term Report May 2012 to May 2018 at page 93 enumerates the following facts;* *“In addition, non-cooperation by the Service have seen concerted efforts by officers to cover up crimes, with official documents and exhibits being tampered with, shoddy and hasty investigations by police to defeat justice, charging in court of victims of police misconduct to circumvent IPOA investigations, skewed interpretation of applicable laws to justify police actions, poor record keeping and failure to maintain proper records as per the law or service standing orders, deliberate records tampering and loss of vital documents, manipulation of Arms and Ammunition Movement Register, un-serialised or unsealed documents to circumvent justice course.”* 1. The two convicts before me did not act alone. They were together with their fellow police officers some of whom disappeared and others who were arrested and released. 2. The manner in which the offence was committed is such that had it not been for ***Muruatetu 1,*** the convicts would be facing the mandatory sentence of death. 3. I have weighed the mitigating factors vis a vis the aggravating factors. The submission about the life of the convicts post the offence is one mitigating factor. However, there are no mitigating factors for the commission of the offence. There was no evidence of the need to make a split second decision, there was no threat to the convicts and their colleagues and they were not under any demonstrable duress, psychological pressure to commit the offence. 4. The aggravating factors far outweigh the mitigating factors. The picking of the deceased from his house, by police transporting him to the scene of the first shooting, following him to the hospital, and killing him. The irreparable harm caused by the death of the victim, Prosecution witnesses had to be put under witness protection, the viciousness of the attack in the presence of others in a hospital ward. The fact is that there was no provocation, it was not in self defence. 5. In [Koi v Republic [2025] KECA 1633 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1633/eng%402025-10-03) in an appeal against the sentence of 30 years meted by the trial Judge, the Court of Appeal had this to say: *Finally, on sentence, the appellant urged the Court to review the sentence terming it as excessively harsh. On the other hand, the respondent urged the Court not to disturb the sentence as it was very lenient. The appellant was sentenced to 30 years’ imprisonment for the offence of murder. Although Section 204 of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1930/10/eng%402023-12-11%22%20%5Ct%20%22_blank) provides for a mandatory death sentence for any person charged and convicted of the offence of murder, in [Francis Karioko Muruatetu & Another vs. Republic](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2%22%20%5Ct%20%22_blank) (2017) eKLR, the Supreme Court held that the mandatory nature of the death sentence prescribed for the offence of murder by Section 204 of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1930/10/eng%402023-12-11%22%20%5Ct%20%22_blank) was unconstitutional as it deprived the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case.* *38.The crime was committed with deliberate planning, malice, and intent to kill, resulting in the deceased’s death by strangulation, which was clearly linked to the appellant.* ***The trial judge correctly exercised his discretion in imposing a 30-year prison term, and there is no ground to interfere with the sentence. We hold that the appeal is without merit and is dismissed in its entirety.*** 1. Though in this case death was by multiple gun shots, I am properly guided on the appropriate sentence. 2. The court was urged to consider the period the case had been in court and that the convicts had attended court faithfully. The law provides for the consideration of the period spent in custody pursuant to s. 333(2) and its proviso, of the Criminal Procedure Code. It states; *(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.* ***Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.*** 1. The provision speaks for itself. Nevertheless, this court has taken into consideration the period the case has been in the system and the fact that various factors contributed to the same. 2. Taking into account the totality of the circumstances of this case, each convict is sentenced to 30 years’ imprisonment. 3. Right of Appeal 14 days. Sentence Ruling dated, signed and delivered virtually this 19th June 2026 **MUMBUA T MATHEKA** **JUDGE** CA Chrispol 1st Accused present virtually 2nd Accused present virtually Mr. Muchoki for 1st Accused Mr. Onyango for 2nd Accused Ms. Musando for the State 1. Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga [↑](#footnote-ref-1) 2. Chairperson - Judicial Taskforce on Sentencing [↑](#footnote-ref-2)