[2025] KEHC 3481 (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 his plea for leniency. The court also considered the brutality of the murder and the ongoing bitterness of the victim's family. Balancing these factors, the...
Source-derived case information.
- Citation
- [2025] KEHC 3481 (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 / Sentence
- Outcome
- Accused sentenced to 35 years imprisonment for murder, sentence to run from 31/3/2022.
- Judges
- SC Chirchir
- Legal Topics
- Murder, Sentencing, 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 / Sentence
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 alleged remorse are sufficient mitigating factors.
- 3 What weight should be given to the findings of the probation report and the views of the victim's family.
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 his plea for leniency. The court also considered the brutality of the murder and the ongoing bitterness of the victim's family. Balancing these factors, the court determined that a custodial sentence was necessary to reflect the sanctity and dignity of human life. The accused was therefore sentenced to 35 years in prison, with the sentence deemed to have commenced from the date he was first placed in custody.
Court Disposition
Accused sentenced to 35 years imprisonment for murder, sentence to run from 31/3/2022.
Orders
- The accused is sentenced to 35 years imprisonment.
- The sentence is deemed to have commenced on 31/3/2022.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Musembe (Criminal Case 32 of 2017) [2025] KEHC 3481 (KLR) (20 March 2025) (Sentence)
Neutral citation: [2025] KEHC 3481 (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 indicate that he is not remorseful. She asserts that a person who is not 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 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 life.
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