[2025] KEHC 3428 (KLR)
The court found that although the accused claimed to be remorseful and is a first offender, the probation report and continued denial of the offence undermined the plea for leniency. The court noted that the killing was vicious and brutal, and that the family of the deceased remained bitter, with no genuine...
Source-derived case information.
- Citation
- [2025] KEHC 3428 (KLR)
- Parties
- Applicant: Republic; Defendant: Tofiko Oduong Musembe
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 32 of 2017
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- accused sentenced to 35 years imprisonment for murder
- Judges
- SC Chirchir
- Legal Topics
- Murder, Sentencing Principles, Mitigation, Remorse, Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Tofiko Oduong Musembe
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should receive a custodial or non-custodial sentence for the offence of murder.
- 2 Whether the accused's status as a first offender and claims of remorse are sufficient mitigating factors to warrant leniency.
Ratio Decidendi
The court found that although the accused claimed to be remorseful and is a first offender, the probation report and continued denial of the offence undermined the plea for leniency. The court noted that the killing was vicious and brutal, and that the family of the deceased remained bitter, with no genuine reconciliation attempts evident. In balancing the mitigating and aggravating factors, the court determined that a custodial sentence was necessary to reflect the sanctity and dignity of human life. Consequently, the accused was sentenced to 35 years in prison, with the sentence deemed to have commenced from the date of first custody.
Court Disposition
accused sentenced to 35 years imprisonment for murder
Orders
- The accused is sentenced to 35 years in prison.
- The sentence is deemed to have taken effect from 31/3/2022.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Musembe (Criminal Case 32 of 2017) [2025] KEHC 3428 (KLR) (20 March 2025) (Sentence)
Neutral citation: [2025] KEHC 3428 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Case 32 of 2017
SC Chirchir, J
March 20, 2025
Between
Republic
Prosecution
and
Tofiko Oduong Musembe
Accused
Sentence
1. The Accused herein was convicted of the offence of murder on 17th October 2024. Thereafter a social inquiry was carried out by the probation office at Kakamega at the request of the court.
2. In mitigation, Ms Wanyonyi for the Accused told the court that the Accused was a first- offender . That he is also the sole bread winner for his family, of two wives and six children. The counsel further informed the court that the family is making efforts towards reconciliation; that the community back home is receptive and willing to receive the Accused.
3. It is submitted that he is remorseful. He seeks for non- custodial sentence.
4. For the state, Ms. Osoro put emphasis on the fact that the Accused has been found guilty of the offence of murder. She further submits that the findings of the social inquiry report indicates that he is not remorseful. She asserts that a person who is remorseful is incapable of being rehabilitated. She urged the court to impose a severe sentence.
5. I have considered the rival submissions and the findings of the probation officer as contained in the probation report.
6. Remorse and being a first offender are mitigating factors. The prosecutor has dismissed the Accused’s plea of remorse in view of the fact that the Accused continues to deny the offence despite the guilty verdict. A reading of the social Inquiry indeed negatives his submissions. The findings of the probation officer also show that the his step- mother and his half- siblings are still bitter about the killing of the deceased, who was the Accused’s half – brother. The Accused’s report that there are attempts at reconciliation , while it is a positive initiative, appears not to have been attempted.
7. I have considered the circumstances of the offence. Evidence on record show that the killing was vicious and brutal. I find it necessary to met out a sentence that speak to the sanctity, and dignity of human .
8. Taking into consideration all the aforegoing, I hereby sentence the accused to 35 years in prison. The sentence is deemed to have taken effect from 31/3/2022 being the date when he was first placed in custody.
9. Right of Appeal in 14 days.
DATED, SIGNED AND DELIVERED VIRTUALLY AT ISIOLO THIS 20TH DAY OF MARCH, 2025 IN THE PRESENCE OF:S. CHIRCHIRJUDGE.In the presence of :Godwin Luyundi- Court AssistantTofiko odoung- The AccusedMs. Kagai for DPP