https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12109

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **CRIMINAL CASE NO. E004 OF 2022** **(CORAM: HON. CHARLES M. KARIUKI – J)** **REPUBLIC…………………………………………………………………PROSECUTOR** **VERSUS** **CHARLES OMWENGA MORARA………………..…………………………. ACCUSED** **SENTENCING** 1. **INTRODUCTION** 2. The accused person, CHARLES OMWENGA MORARA, was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge were that on 1st February 2022 at Olchorro Trading Centre in Narok North Sub-County within Narok County, he murdered Helisphani David Onsase. 3. Subsequently, the parties entered into a Plea Agreement dated 15th May 2026 pursuant to Sections 137A to 137O of the Criminal Procedure Code. Under the agreement, the charge of murder was substituted with the offence of manslaughter contrary to Section 202(1) as read with Section 205 of the Penal Code. 4. On 18th May 2026, the accused pleaded guilty to the substituted charge. The facts supporting the plea were read and explained to him, and he unequivocally admitted them by stating: *"The facts are true."* 1. The court, being satisfied that the plea was unequivocal and that the admitted facts disclosed the offence of manslaughter, convicted the accused on his own plea of guilty. 2. The prosecution informed the court that the accused was the first offender. 3. In mitigation, learned counsel for the accused submitted that the accused is twenty-four years old, is genuinely remorseful and deeply regrets the loss of his cousin. Counsel submitted that the accused had accepted full responsibility for his actions by entering into the plea agreement and pleading guilty. Counsel further urged the court to consider the accused's medical condition, producing treatment notes indicating that he suffers from cardiac and kidney-related complications requiring specialised treatment, including referral to Kenyatta National Hospital. It was further submitted that the accused has remained in custody for over four years and the court was urged to take into account the period already spent in custody pursuant to Section 333(2) of the Criminal Procedure Code. 4. Learned prosecution counsel, Ms Kerubo, opposed a lenient sentence. Counsel submitted that notwithstanding the guilty plea, a human life was lost and the deceased suffered fatal injuries. She urged the court to bear in mind the gravity of the offence and the suffering occasioned to the deceased's family. On the issue of the accused's health, counsel submitted that the Kenya Prisons Service can facilitate appropriate medical treatment and referrals when necessary, and that the medical condition should not be a basis for imposing a non-custodial or unduly lenient sentence. 5. The court thereafter called for a pre-sentence report from the Probation and Aftercare Service, which was filed on 27th July 2026. 6. **ANALYSIS** 7. **Applicable principles** 8. The accused stands convicted of the offence of manslaughter contrary to Section 202(1) as read with Section 205 of the Penal Code. Section 205 provides that a person convicted of manslaughter is liable to imprisonment for life. The provision prescribes the maximum sentence but leaves the appropriate punishment to the court’s discretion, depending on the circumstances of each case. 9. Sentencing is an individualised judicial exercise. The court is required to impose a sentence proportionate to the gravity of the offence and the offender's culpability, while balancing the interests of the offender, the victim, the victim's family, and society. In **Francis Karioko Muruatetu & Another v Republic [2017] eKLR**, the Supreme Court affirmed that sentencing is a discretionary judicial function that requires consideration of all mitigating and aggravating circumstances in each case. 10. The court is also guided by the **Judiciary Sentencing Policy Guidelines, 2016**, which identify the objectives of sentencing as retribution, deterrence, rehabilitation, restorative justice, community protection, and denunciation. None of these objectives should be pursued to the exclusion of the others. The sentence imposed should therefore be fair, proportionate, and consistent with the constitutional values of human dignity, fairness, and justice. 11. In determining the appropriate sentence, the court has considered the Plea Agreement, the facts admitted by the accused, the mitigation by counsel, the prosecution's submissions in aggravation, the pre-sentence report dated 27th July 2026, the personal circumstances of the offender, the impact of the offence upon the deceased's family and the period already spent in lawful custody pursuant to Section 333(2) of the Criminal Procedure Code. 12. **The Plea Agreement** 13. The Plea Agreement was entered into voluntarily pursuant to Sections 137A–137O of the Criminal Procedure Code. The accused admitted responsibility for unlawfully causing the death of the deceased and pleaded guilty to the reduced charge of manslaughter. His plea spared the victim's family the emotional ordeal of a lengthy trial and saved judicial time and resources. 14. Nevertheless, Clause 21 of the Plea Agreement expressly provides that sentencing remains within the trial court’s sole discretion. The court is therefore obligated to impose an appropriate sentence after independently considering all relevant circumstances. 15. **The Pre-Sentence Report** 16. The pre-sentence report prepared by the Probation and Aftercare Service portrays the offender as a 28-year-old first offender with no prior criminal record. He discontinued his primary education, later trained as a motor vehicle mechanic, and thereafter earned his livelihood through mechanical work, farming, and operating a motorcycle. He is the firstborn in a family of seven children and has one young child of his own. His parents live separately, and his mother is reportedly recovering from a stroke and depends significantly upon him for support. 17. According to the report, the offender expressed genuine remorse, admitted responsibility for the offence, and sought forgiveness from both the court and the deceased's family. He stated that he never intended to cause the death of his cousin and has reflected on the consequences of his actions during the more than four years he has remained in custody. 18. The report further reveals that the deceased and the offender were first cousins whose fathers are biological brothers. The offender's father, considered deceased's paternal uncle, described the incident as a tragic family occurrence, and informed the probation officer that the family considered an unfortunate accident arising from a fight between close relatives. The deceased's family has not expressed hostility towards the offender, and there appears to be no likelihood of retaliation or conflict should he eventually reintegrate into the community. Local administration officials equally confirmed that the offender has no known criminal history and enjoys positive standing within the community. 19. Having assessed the offender and consulted the relevant stakeholders, the Probation Officer recommended that the court consider a non-custodial sentence under probation supervision coupled with counselling, anger management, and alcohol abuse intervention programmes. 20. **Aggravating and mitigating circumstances** 21. The court has weighed both the aggravating and mitigating factors. 22. On the aggravating side, a human life was lost. The deceased sustained fatal injuries following an assault by the offender. The sanctity of human life is protected under Article 26 of the Constitution, and every unlawful loss of life calls for an appropriate penal response. The prosecution correctly submitted that the deceased's family permanently lost a loved one and no sentence can reverse that loss. The court also notes that the offender resorted to the use of a dangerous weapon during the confrontation. 23. On the other hand, there are considerable mitigating circumstances. The offender is the first offender. He pleaded guilty at the earliest opportunity, pursuant to the plea agreement, and accepted responsibility for his conduct. He expressed remorse and sought forgiveness. The deceased was his own first cousin, demonstrating that the offender himself must live with the emotional burden of causing the death of a close family member. The incident was not shown to have been premeditated but occurred during a drunken confrontation between the two relatives. The pre-sentence report further confirms that reconciliation within the family has substantially taken place and that there is no hostility towards the offender. 24. The court has also considered the offender's medical condition. Defence counsel produced treatment notes indicating that the offender suffers from cardiac and kidney-related complications requiring specialised medical attention. While the prosecution submitted that treatment remains available within the correctional system, the court accepts that the offender's health is a relevant mitigating consideration, though not one that excuses the commission of the offence. 25. Most importantly, the accused has remained continuously in custody since 2nd February 2022, a period exceeding four years. Section 333(2) of the Criminal Procedure Code obligates the court to take into account the period spent in pre-trial custody. The Court of Appeal in **Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR** emphasised that courts must give Section 333(2) its proper effect and expressly account for the period already served before imposing sentence. 26. Having balanced all the competing considerations, the court is satisfied that this is not among the worst instances of manslaughter warranting a lengthy custodial sentence. Equally, the unlawful loss of life cannot be met with a wholly non-custodial sentence notwithstanding the favourable probation report. A custodial sentence remains necessary to reflect the value society places upon human life, to denounce unlawful violence and to deter similar conduct. However, the lengthy period already spent in custody, the guilty plea, demonstrated remorse, family reconciliation, favorable social inquiry report, and the offender's personal circumstances justify substantial leniency. 27. **SENTENCE** 28. **Accordingly, the accused,** **CHARLES OMWENGA MORARA, is sentenced to seven (7) years' imprisonment for the offence of manslaughter contrary to Section 202(1) as read with Section 205 of the Penal Code.** 29. **Pursuant to Section 333(2) of the Criminal Procedure Code, the court directs that the sentence shall run from 2nd February 2022, being the date when the accused was first remanded into custody. In effect, the period already served shall be reckoned as part of the sentence.** 30. **The Commissioner General of Prisons is directed to ensure that the offender continues to receive appropriate medical assessment and treatment for the cardiac and renal conditions brought to the attention of the court, including referrals to specialised medical facilities when medically necessary.** 31. **The offender is encouraged to participate while in custody in counselling, anger management, alcohol and substance abuse rehabilitation programmes and vocational training to facilitate his successful reintegration into society upon completion of his sentence**. 32. It is so ordered**.** **DATED, SIGNED, AND DELIVERED AT NAROK, THIS 31ST DAY OF JULY 2026.** **CHARLES KARIUKI** **JUDGE**