https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9634

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CRIMINAL CASE NO. E003 OF 2021** **REPUBLIC…………………………………………………………………….PROSECUTION** **VERSUS** **ANNE NYABOKE…………………………………………………………………ACCUSED** **RULING ON SENTENCE** 1. The accused, a young lady then aged about 27 years old, was charged with the offence of murder contrary to **Section 203** as read with **Section 204** of the **Penal Code**. The particulars were that on 22/12/2020, at Joyland Baringo in Kabiyemit Location, Turbo Sub-County, within Uasin Gishu County, murdered **Rensal Oriyo**, her 28 years old boyfriend. 2. **Mr. Oduor Advocate** represents the accused, while **Prosecution Counsel** **Ms Claire Muriithi** appears for the State. 3. The accused took plea on 20/01/2021 before **Sewe J**, and pleaded not guilty. The trial then began on 7/07/2021 when the 1st Prosecution witness, (**PW1**) testified. The parties however subsequently entered into plea bargain discussions which eventually culminated to the Plea Bargain Agreement dated 12/01/2026, which indicated that the accused had agreed to plead guilty to the lesser charge of Manslaughter, and to then let the Court determine the sentence. 4. The matter then came up for plea bargain hearing before me on 12/02/2026. The accused was sworn on oath, and after examining her, I recorded my satisfaction that **Section 137F-137G** of the **Criminal Procedure Act**, governing the plea bargain process had been complied with, that the accused had signed the agreement together with her Counsel, voluntarily, and without any coercion, that she fully understood the effect thereof, and that members of the family of the deceased had been involved in the process. I thus allowed accused to take a fresh plea, now on the fresh charge of Manslaughter contrary to **Section 202** as read with **Section 205** of the **Penal Code**, which she did, and upon which she then pleaded guilty. The statement of facts of the case (factual basis) was then read out to the accused, was basically as follows: ***“The deceased Rensal Opiyo and the accused were boyfriend and girlfriend. They were living together in the accused’s rented housed at Joyland, Baringo area. On 23rd December, 2020, the accused person arrived home at around 10:00 pm and found the deceased who picked a quarrel with the accused for coming home late. The quarrel escalated into a fight and the accused went into the kitchen and took a knife and stabbed the deceased on the left side of the chest. The accused then raised an alarm that attracted neighbours who responded and found the deceased lying on the ground in a pool of blood.*** ***The deceased was then rushed to Gynocare Hospital where he was pronounced dead on arrival. The hospital management took it upon themselves to inform the police officers from Kapsoas Police Post who responded to the Hospital quickly. The accused was briefly interrogated and then arrested. The officers then proceeded to the accused’s house and recovered the knife used to stab the deceased.*** ***On 28th December, 2020 the post-mortem examination on the body of the deceased was conducted at Moi Teaching and Referral Hospital by Dr. Macharia, a pathologist who opined that the cause of death was due to hypovolaemic shock due to bleeding due to penetrating stab wound to the chest. The accused was later charged for the offence of murder.”*** 1. Prosecution Counsel then produced the Post Mortem Report dated 28/12/2020, and the knife referred to above, as exhibits. 2. When asked to confirm or refute or comment on the correctness of the said facts as read out, the accused confirmed the same as being correct and true. Satisfied that the statement of facts read out disclosed sufficient factual basis for the charge, this Court accordingly convicted the accused on the offence of Manslaughter on her own plea of guilty. 3. I then directed that a pre-sentence Report be prepared and filed, which was done. The Report, dated 26/02/2026 and prepared by the Probation & Aftercare Service Uasin Gishu County indicated that it had been compiled from information obtained from, inter alia, family members of both the accused and the deceased, and the area Chief. 4. Regarding the sentence to be meted out, **Mr. Oduor**, in mitigation, begun by submitting that the Supreme Court in the ***Muruatetu*** *c*ases abolished the death penalty and set out the sentencing principles. Regarding the circumstances leading to the death, he submitted that the scuffle ensued because the accused had been dropped by a company car, and the deceased misunderstood the nature of the car and its occupants. He submitted further that after the deceased sustained the stab wound, it is the accused who called for help and assisted in taking the deceased to hospital, that she was in fact arrested at the hospital, and that the stab wound was only one. He urged that this conduct after the act was humane, and stated that the accused is presently aged only 33, thus still young and was 29 years at the time of the incident. He also stated that the accused is a mother of 4, aged 13, 11, 10 years and 2 ½ years, that she is a single mother who making ends meet by washing clothes for customers and carrying out other casual work, and that she also lives with her ailing mother who suffers from a spinal code injury and is bed-ridden. Regarding her character, he stated that the accused is a person of high moral standards and that the society still accepts her, that the accused has been remorseful from day one and is in talking terms with the family of the deceased who have forgiven her, and that the families have reconciled. He thus prayed for a non-custodial sentence. 5. On her part, **Ms. Muriithi** agreed that the Report speaks highly of the accused, who is also evidently remorseful. She however stated that the mother of the accused denies that the deceased has reached out to the family of the accused, which is not contented with the accused. She stated that although the conduct of the accused after the incident was humane, a life was lost. She then requested the Court to allow the mother and brother of the accused who were present in Court to address the Court. She also observed that the accused had spent 5 months in custody before sentence. 6. The mother of the accused, **Pamella Mebo**, when I gave her the opportunity to speak, stated that the accused was 22 years old when the death occurred as he was born in 1988, and denied that the family of the accused had ever sat down with that of the deceased to reconcile. 7. **Emmanuel Wemali**, who introduced himself as a brother of the accused, on his part, stated that he is opposed to the non-custodial sentence proposal, and denied that the accused had reached out to them. He stated that the deceased was also taking care of them and they are also in pain, and that it is not only the side of the accused that needs to be considered. She also observed that the accused had initially denied the charge. Regarding the Plea Bargain Agreement, he doubted whether his mother, who attended the negotiations, even understood its terms and nature. **Determination** 1. The applicable law on sentence for the offence of Manslaughter is **Section 205** of the **Penal Code** which provides as follows: **“Any person who commits the felony of manslaughter is liable to imprisonment for life”** 1. In determining the appropriate sentence to impose, I take into account the Supreme Court decision in thethe case of **Francis Karioko Muruatetu & Another v Republic [2017] eKLR)** in which it guided that, in sentencing, the following mitigating factors would be applicable;**(a) age of the offender;****(b) being a first offender;****(c) whether the offender pleaded guilty;****(d) character and record of the offender;****(e) commission of the offence in response to gender-based violence;****(f) remorsefulness of the offender;****(g) the possibility of reform and social re-adaptation of the offender;** and, **(h) any other factor that the Court considers relevant.** 2. Similarly, the Court of Appeal, in the case of [**Daniel Kipkosgei Letting Vs. Republic**](http://kenyalaw.org/caselaw/cases/view/215923/) **[2021] eKLR**, pronounced as follows; **“With regard to the above, we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..”** 1. Further, **Majanja J**, in quoting **Francis Karioko Muruatetu (supra)**,in the case of **Michael Kathewa Laichena & another v Republic [2018] eKLR***,* stated as follows: **“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………”** 1. I note that under the Plea Bargain Agreement, the Prosecution recommended a non-custodial sentence. In mitigation, the defence also urged for a non-custodial sentence. 2. With the above facts and guidelines in mind, I have considered the circumstances surrounding the commission of the offense. The circumstances suggest that the act may not have been premeditated, but rather an impulsive reaction in a fight with the deceased, a late-night altercation sparked by the deceased's disgruntlement over the accused being dropped home at night by a car, which however turned out to have been a company car. The Post-Mortem Report, which indicates a single stab wound to the chest, also supports the inference that the accused may have acted as a spur of the moment. At 33 years in age, the accused is also still relatively young. The indication is that the accused is also a first offender, and she is also said to be a mother of 4, the last one being a toddler aged 2 ½ years, and her own mother, also a single-parent having separated from her husband, is also said to be ailing and bed-ridden. Although she entered into the Plea Bargain Agreement 6 years after she was charged, it demonstrates her remorse, and a willingness to take responsibility, and also saved precious judicial time and resources. 3. I have also considered the contents, findings and recommendations of the Pre-sentence Report. The salient observations I make from the Report are that the accused is known to be obedient, respectful and hardworking, that the family of the deceased is said not to hold the offence against the accused and has forgiven her and there is no animosity between the two families. The area Chief is also said to be in favour of a non-custodial sentence. 4. The above are no doubt, mitigating factors which ought to have a bearing on the sentence to be imposed. 5. There are however notable aggravating circumstances. For instance, the Post Mortem Report paints a grim picture of a vicious attack as indicated by the deep cut wound suffered by the deceased to the chest. In choosing to engage in a physical combat, the accused assumed a foreseeable risk of inflicting grievous, and potentially terminal, harm. She resorted to a degree of violence that was excessive, disproportionate and unnecessary. Even if the accused faced an imminent threat to her life, the opportunity to retreat and de-escalate the situation remained available to her. By choosing confrontation over flight, she exercised a fatal error in judgment. 6. It is also not lost on me that the mother of the deceased, when I gave her the chance to address the Court, contended that the two families had never sat down to discuss reconciliation. She seems to have therefore back-tracked from her earlier view of the plea bargain. I say so because she had participated in the plea bargain discussions, and together with her daughter, even signed the resolutions. I fully understand the pain of a mother losing her son in the manner it happened. I also note that the brother of the deceased who also addressed the Court spoke strongly against the proposal for a non-custodial sentence. I do not however wish to engage in speculation for the change of heart. 7. Upon considering all the above matters, I will give out a sentence that I believe does justice to all the circumstances and facts recounted above. 8. In the end, I find that a non-custodial sentence would not be appropriate in this case. Through a needless and rash action by the accused to engage in an unnecessary fight, a human life was lost and the Court must reiterate that it is not acceptable to do anything that may take a human life extra-judicially, even if unintended, whatever the circumstances or level of provocation. I will therefore impose a prison sentence, though relatively lenient. I am making this decision while fully aware that the accused has young children, the last one a 2 years old toddler, and who are bound to suffer for her mother’s indiscretions. It is indeed a painful decision for me to make considering the fate of the innocent children but the law has to take its course. Just as any eventuality of life, such as death, can occur at any time without notice, leaving families torn apart, I trust that the family of the accused, which the Pre-Sentence Report has described as “supportive”, shall come together and ensure that the children are well taken care of during the time that their mother shall be away in prison. **Final Orders** 1. In circumstances, I make orders as follows: 2. I hereby sentence the accused, **Anne Nyaboke**, to serve **three** **(3) years** imprisonment. 3. However, in computing the term to be served in prison, in accordance with the provisions of **Section 333(2)** ofthe **Criminal Procedure Act**, the period between 22/12/2020 (date of arrest) and 23/04/2021 (date of release on bond) spent by the Appellant in custody during the trial, shall be deemed as already served portion of the prison term already served. 4. Right of appeal within 14 days is hereby explained to the accused. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026** **……………..……..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Accused person present physically in Court** | | | **N/A for the accused person’s Advocate** | | | **Ms. Muriithi for the State** | | | **Court Assistant: Brian Kimathi** | |