https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10762

Republic v Mukhwana (Criminal Case 3 of 2008) [2026] KEHC 10762 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10762 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Case 3 of 2008 E Ominde, J July 16, 2026 Between Republic Prosecutor and Peter Wafula Mukhwana Accused Ruling 1.This ruling is on re-sentencing pursuant to the Order of the Court of Appeal at Kisumu in Criminal Appeal No. 211 of 2020, dated and issued on 30th January 2026. The Court of Appeal, while dismissing the appellant's appeal on conviction, set aside the sentence imposed by this court on 7th May 2017 and remitted the matter to this court with specific directions that the trial court takes into account mitigating circumstances and imposes an appropriate sentence, having regard to the period of the accused's incarceration both pre- and post-conviction. 2.Briefly, the background of the case is that the accused, Peter Wafula Mukhwana, was convicted of the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code, Cap. 63, Laws of Kenya, arising from the death of one Salome Alivitsa at Mukhuyu village, Webuye Location, on the 10th day of December 2007. He was sentenced to death, a sentence later commuted to life imprisonment. He has now been in custody for a period of approximately nineteen (19) years, from the date of his arrest in December 2007 to date. 3.Learned Counsel for the accused, in mitigation, submitted as follows:i.That the accused is a first offender with no record of prior convictions;ii.That he is a man of advanced age, being 71 years old;iii.That he has already served a substantial period in custody, being approximately nineteen (19) years since his arrest and subsequent conviction;iv.That he is not a flight risk, being firmly rooted within his community at Mabuye Sub-Location, Matete Sub-County, Kakamega Countyv.That the pre-sentence report prepared by the Probation and Aftercare Service, Bungoma, dated 15th April 2026, is favourable to the accused; andvi.That in the premises, the accused be considered for a non-custodial sentence. 4.This court has had the benefit of a comprehensive pre-sentence report prepared by the County Probation Director, Bungoma, Mr John Riungu, which I have carefully perused. The report confirms the following material facts: 5.That the accused is 71 years of age, hails from a polygamous family, and is settled at Kapsi village, Mabuye Sub-Location, Matete Sub-County, Kakamega County. He is married to Joyce Nafula, with whom he has four children, two of whom continue to reside with and depend on him. 6.The report further indicates that the accused has no previous criminal record, and no complications relating to drugs, alcohol, or substance abuse were established. His immediate family, namely his wife and two sons, expressed willingness to receive him back into the family fold, noting that his absence has been keenly felt, particularly given his role as head of the household. 7.The local administration, represented by the Assistant Chief and the Village Elder of the Kapsi area, together with members of the community, were unanimous that the accused poses no threat to public safety, that there exists no history of retaliation or hostility between his family and the community, and that they have no objection to his reintegration into society. 8.Regrettably, despite diligent efforts, the probation office was unable to trace the family of the deceased, Salome Alivitsa, as she was not indigenous to the Webuye area and had resided in rented premises whose occupants have since relocated. Consequently, no victim impact statement was availed to this court. 9.Further to my consideration of the Probation Report, I have also perused the record of the trial court so as to appreciate the circumstances surrounding the commission of the offence and juxtapose the same to the mitigation advanced by the Learned Counsel for the accused which I note primarily revolves around, and is premised mostly on the pre-sentence report availed by the Probation Office. 10.The sanctity of human life is a constitutional value of the highest order under Article 26 of the Constitution, and any sentence imposed must reflect due regard for this loss and must not be so lenient as to trivialise the taking of a life. It remains one of the most serious offences known to our criminal justice system or any other criminal justice system for that matter involving as it does the unlawful and violent termination of human life., 11.Whereas the court is enjoined to balance the gravity of the offence against the mitigating factors placed before it in determining what a just and proportionate sentence ought to be, the court is also under a duty to take into account the aggravating circumstances surrounding the commission of the offence. 12.The Sentencing Policy Guidelines 2023 provides for the Principles Underpinning the Sentencing Process as well as the Objectives of Sentencing. At 1.2.1 is the Principle of Proportionality. The same commands that 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. 13.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. At 3.1 on the objectives of Sentencing, the policy explains that sentences are imposed to meet the several objectives that have been therein listed. Of significance is that whereas there will be instances in which the objectives may conflict with each other, insofar as possible, sentences imposed should be geared towards meeting the objectives in totality. 14.It is therefore my considered opinion that whatever sentence this court metes out should not only be in consonance with the herein stated principle of proportionality but must also meet the twin objectives of retribution, whose primary purpose is to punish the offender for their criminal conduct in a just manner, and that of denunciation, whose aim is to clearly communicate the community’s condemnation of the criminal conduct. 15.From my perusal of the trial court proceedings, I find that the murder of the deceased Salome Alivitsa, was not only deliberate and premeditated, but was also executed in a most cruel and heinous manner. Further, the Court of Appeal having sustained the conviction of the trial court affirms the trial court’s finding that that the perpetrator was indeed the accused herein. 16.In this regard, in the instant case, all factors considered, it is my finding that a wholly non-custodial sentence, as advocated by the Counsel for the accused, and as proposed in the Pre-sentence report, would not be proportional to the severity of the offence. This is for reasons that to impose a purely non-custodial sentence in relation to a murder conviction would fail to reflect the gravity with which this court and society at large must regard and frown upon the unlawful taking of human life. 17.A non-custodial sentence in my very well considered opinion, should only apply in the rarest of cases where the circumstances therein are exceptionally exceptional. This has not in the least been demonstrated to be the case here. I note that the mitigating factors presented pertain to the age of the applicant and the duration of time that he has been incarcerated and not to whether a custodial sentence should not be imposed at all. These in my view, are not sufficiently compelling to warrant a non-custodial sentence given the circumstances pertaining to the murder of the deceased as already herein observed. 18.Having considered the gravity of the offence therefore as against the mitigating circumstances, and in considering the fact that the accused is 71 years of age, and taking into consideration the period the accused has already spent in custody pre- and post-conviction which amounts to a total of 19 years, I now hereby sentence the accused to a term of thirty (30) years’ imprisonment. 19.Further, and in accordance with the directions of the Court of Appeal, the period already spent in custody since his arrest in December 2007 shall be computed and factored into the sentence as now hereby imposed. 20.Right of Appeal 14 days READ DATED AND SIGNED AT BUNGOMA ON 16TH JULY 2026E. OMINDEJUDGE