https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10787

Republic v Marwa (Criminal Case 9 of 2018) [2026] KEHC 10787 (KLR) (16 July 2026) (Sentence) Neutral citation: [2026] KEHC 10787 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Case 9 of 2018 AK Ndung'u, J July 16, 2026 Between Republic Prosecutor and Patrick Marwa Accused Sentence 1.Patrick Marwa is charged with Murder contrary to Sections 203 and 204 of the Penal Code. The particulars were that on the 4th day of May 2019, at Administration Police Line Two (AP Line 2) within Mararal Town in Samburu County murdered Dancun Cheruiyot. 2.The Accused was tried and convicted of murder. 3.The matter is before court for sentencing. 4.The court has a wide discretion on the question of sentence. However, the said discretion cannot be used by the Court of law in a fanciful and whimsical manner. Every case has to be decided on the consideration of its circumstances including the gravity of offence, victim impact, the need to deter crime and the rehabilitation of an offender among others. The discretion does not open a carte blanche for a whimsical decision on the appropriate sentence. In The Nature of the Judicial Process – Yale University Press 1921 Ed page 144 Benjamin N. Cardozo puts it in the following words;“The judge even where he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to drawn his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life’. . .” 5.The question then that I have to grapple with at this stage is what would constitute an adequate, appropriate and just sentence in the circumstances of this case? In the case oF State Of Madhya Pradesh V Mehtaab Cr. Appeal No. 290 OF 2015, the Supreme Court of India held:“It is the duty of the court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstances may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and society. It is also the duty of the court to duly consider the aspect of rehabilitating the victim.” 6.The objectives of sentencing as stated in paragraph 4.1 of the Judiciary Sentencing Policy Guidelines can be summarized as follows:a.To prevent the occurrence of crime;b.To punish the transgressor and the criminal;c.To rehabilitate the transgressor and the criminal;d.To compensate the victim;e.To deter the offender from committing any criminal acts in the future as well as other people from committing similar offences andf.To protect the community condemnation of the convict. 7.The importance of sentence was emphasized by the Supreme Court of India in the case of ANTONY PAREIRA v STATE OF MAHARASHTRA (2 AIR 2012 SC 3802) where it stated stated:“ 70.Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles; twin objective of the sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. 8.I have considered the fact that the accused has no previous record. I have also considered the mitigation put forth by the Counsel Muchina for the Accused and the prosecution’s address as articulated by Ms Kimani Counsel for the State. 9.I have had the advantage of reading and considering the pre-sentence inquiry report. I have considered the circumstances of the offence as borne out from the evidence. The deceased was robbed of his life needlessly. Through his death, his nuclear family and by large the nation was exposed to enormous loss of a family member on one hand and a public servant in the sensitive docket of security. The deceased was killed while performing his duties of allocating duties to officers under his command. The Accused acting against the law and the force standing orders defied as can be gleaned from the evidence directions of this senior and took the law into his own hands and resorted to shooting the Officer who was merely doing his duties. 10.The nature of the offence is aggravated by again as can be seen from the evidence, the most vile and violent nature involved with the accused shooting the deceased 10 times continuously with the shooting even when the deceased was felled by the initial bullets. The agony and pain suffered must have been enormous. 11.This Court takes judicial notice as a matter of common notoriety of the many incidents of a similar nature happening in the country among defiant Police Officers aiming against their Seniors not to mention the ever rising cases of trigger happy policemen turning their guns against the citizenry. 12.In my considered view, a deterrent sentence is merited and necessary to stem this unfortunate tread. The law allows for the death sentence. I am persuaded however that the ends of justice shall be met by the application of a lengthy custodial sentence. Having regard to the law, the legal principles developed over time through precedent and guided by the Judiciary Sentencing Guidelines, I sentence the Accused person 40 years imprisonment. Right of appeal is explained. DATED SIGNED AND DELIVERED AT ELDORET THIS 16TH DAY OF JULY 2026A.K. NDUNG’UJUDGE