https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12319

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CRIMINAL CASE NO. E008 OF 2024** **REPUBLIC…………………………………..PROSECUTION COUNSEL** **-VERSUS-** **DAYON OKELLO OCHIENG……………………………..1ST ACCUSED** **EMMANUEL OPIYO OCHIENG………………………..2ND ACCUSED** **SENTENCE** 1. **Dayon Okello Ochieng** (hereinafter “the 1st accused”) and **Emmanuel Opiyo Ochieng** (hereinafter “the 2nd accused”) were vide the information dated 19th June, 2024, jointly charged with the offence of murder contrary to *Section 203* as read with *Section 204* of the *Penal Code, Cap 63 Laws of Kenya.*The particulars of the offence were that on the 27th day of May, 2024 at Dirubi Village, Siany Sublocation, South Nyakach Location in Nyakach Subcounty, the 1st and 2nd accused persons jointly murdered **Charles Ogweno Ogolla** (hereinafter referred to as “the deceased”). 2. Both accused persons denied the charge and a plea of not guilty was accordingly recorded. 3. Pursuant to a plea bargain agreement dated 26th May, 2026 executed and entered into by the accused persons, their respective Counsel and the Prosecution Counsel, the charge of murder was reduced, and vide the substituted charge sheet dated 13th July, 2026, the accused persons are now jointly charged with the offence of manslaughter contrary to *Section 202* as read with *Section 205* of the *Penal Code.* The particulars of the offence are that on the 27th day of May, 2024 at about 1100hrs at Dirubi Village, Siany Sublocation, South Nyakach Location in Nyakach Subcounty, the 1st and 2nd accused persons jointly unlawfully killed **Charles Ogweno Ogolla.** 4. Both accused persons, who are brothers, pleaded guilty to the reduced charge on 13th July, 2026 and were consequently each convicted of the offence of manslaughter contrary to *Section 202* as read with *Section 205* of the *Penal Code.* The matter now falls for sentence. 5. Sentencing is one of the most solemn responsibilities entrusted to a court of law. It requires the court to balance the circumstances of the offence, the personal circumstances of the offender, the interests of the victim and the victim’s family and the interests of society. 6. Before determining the appropriate sentence, this court has carefully considered the prosecution’s submissions, the mitigation by learned Defence Counsel, the presentence reports prepared by the Probation and Aftercare Department, the victim impact statements, the plea bargain agreement entered into by the parties, the personal circumstances of each accused person and the applicable law. 7. **Ms. Muema,** learned Prosecution Counsel urged the court to impose a custodial sentence of 30years imprisonment. Counsel submitted that a life was unlawfully lost in circumstances involving a violent assault upon the deceased, who left behind a widow and three young children. 8. It was further submitted that the deceased was the family’s breadwinner and that the gravity of the offence warranted a substantial custodial sentence. 9. **Mr. Okello** and **Mr. Bagada** learned Counsel for the accused persons, on the other hand, proposed a sentence of 5 years imprisonment. 10. In their submissions in mitigation, Counsel emphasized that both accused persons are first offenders, pleaded guilty at the earliest available opportunity following the plea bargain, have remained in custody for over two years, are genuinely remorseful and possess favourable prospects of rehabilitation. 11. The court has anxiously considered those competing proposals. Sentencing is not an exercise in choosing between the rival positions advanced by the prosecution and the defence. Rather, the court bears the independent constitutional duty of imposing a sentence that is proportionate to both the gravity of the offence and the moral blameworthiness of the offender while at the same time serving the legitimate objectives of criminal justice. 12. The offence of manslaughter carries a maximum sentence of life imprisonment under *Section 205* of the *Penal Code.* That statutory maximum does not mean that every offender convicted of manslaughter deserves life imprisonment. 13. The circumstances in which the offence is committed vary enormously, ranging from unlawful killings involving minimal culpability to cases approaching murder but falling short because malice aforethought cannot be proved. The appropriate sentence therefore depends upon the particular facts of each case. 14. This court begins by considering the seriousness of the offending. The facts admitted by the accused persons reveal that the assault upon the deceased was preceded by events at a church service during which allegations of witchcraft were publicly directed against the accused persons’ father. 15. Rather than allowing lawful institutions or respected community elders to address the dispute, the accused persons resolved to confront the deceased upon his return home. Although the offence has been reduced to manslaughter through plea bargaining, those admitted facts disclose that the confrontation was not entirely spontaneous. 16. The violence employed was grave. Armed with stones, sticks and a metal bar, the two repeatedly assaulted the deceased, inflicting multiple blows, particularly upon his head. Even after the deceased fell unconscious, the assault continued until intervention came. 17. The post-mortem examination established that he succumbed to severe head injuries caused by blunt force trauma. The severity of the assault is therefore fully borne out by the medical evidence. 18. Equally significant is the impact of the offence upon the deceased’s family. The victim impact statements reveal that the deceased was a teacher, a husband and the father of three children. He was the principal provider for his family. His untimely death has deprived his children of parental care and guidance while exposing the family to significant socio-economic hardship. 19. Beyond the financial consequences, the family continues to endure profound emotional and psychological suffering resulting from the violent loss of their loved one. Those consequences are real and enduring and this court must accord them considerable weight. 20. Society equally has a legitimate interest in the outcome of these proceedings. Violence cannot become the accepted means of resolving family disagreements or allegations of wrongdoing. Where members of the public resort to collective violence rather than lawful dispute resolution mechanisms, the rule of law itself is threatened. The sentence imposed by this court must therefore communicate that retaliatory violence will invariably attract serious penal consequences. 21. Against those aggravating considerations stand equally significant mitigating circumstances. The accused persons accepted responsibility for their actions through a negotiated plea bargain and admitted without reservation the facts presented by the prosecution. 22. No doubt, their plea spared the deceased’s family the emotional burden of a contested murder trial, conserved valuable judicial resources and demonstrated an acceptance of responsibility that the law properly recognizes as mitigating. 23. The court has carefully considered the presentence reports. They disclose that the 1st accusedis 21 years old. He dropped out of secondary school while in form one and thereafter earned his livelihood in the *boda boda* transport sector. He is not married. The 2nd accused is25 years old. He attained primary school education, is married though without children, and similarly has no previous criminal record. He is also in the *bodaboda* business. 24. The reports further indicate that both accused persons come from a family headed by their widowed mother together with six other siblings. Members of their family describe them as hardworking, disciplined and respectful before the commission of the present offence. 25. The family deeply regrets the unfortunate events that culminated in the death of the deceased and remains willing to receive and support the accused persons upon their release. Stable family support is one of the strongest indicators of successful rehabilitation and the court attaches considerable significance to that factor. 26. Equally important is the assessment of the Probation and Aftercare Department that both accused persons have expressed genuine remorse for their actions. Remorse cannot restore the life that was lost. Nevertheless, where it is sincerely demonstrated, it signifies insight into the wrongfulness of one’s conduct and reduces the likelihood of future offending. The court has no reason to doubt the probation officer’s assessment in that regard. 27. The court also notes that although the offence initially generated considerable hostility within the local community, the presentence reports indicate that following sustained intervention by the local administration, tensions have substantially subsided. The community no longer expresses the level of animosity that existed immediately after the offence. 28. At the same time, members of the community maintain that a deterrent custodial sentence remains necessary to discourage similar acts of violence. The court agrees that deterrence is an important consideration in the present case, although it must be balanced against the equally important objective of rehabilitation. 29. Another tragic aspect of this case cannot escape the court’s attention. Following the deceased’s death, the accused persons’ father was himself unlawfully killed by members of the public. That act of mob justice was every bit as unlawful as the offence now before this court. 30. While the court cannot regard the death of the accused persons’ father as punishment imposed upon them, it remains part of the tragic human context within which this offence occurred. Two lives were ultimately lost, two families were shattered and an extended family relationship was permanently fractured by violence. 31. Having weighed all the foregoing considerations, this court is unable to agree with either of the proposed sentences. 32. A sentence of 30years imprisonment, though reflecting the gravity of the offence, would in the court’s view insufficiently recognize the youthfulness of the offenders, their guilty plea, genuine remorse, favourable presentence reports, first offender status and realistic prospects of rehabilitation. 33. Conversely, a sentence of 5 years imprisonment would not adequately reflect the seriousness of the sustained assault, the devastating consequences visited upon the deceased’s family or the need to deter retaliatory violence. 34. The sentence ultimately imposed must reflect both justice and hope. Justice for the deceased and his bereaved family through the imposition of a punishment commensurate with the gravity of the offence. Hope that these relatively young first offenders, who have accepted responsibility and demonstrated remorse, may in due course reform and return to society as productive and law-abiding citizens. 35. In the circumstances of this case, the court is satisfied that a custodial sentence of 14 years imprisonment strikes the proper balance between the competing sentencing objectives of retribution, deterrence, denunciation, rehabilitation, community protection and restorative justice. 36. Consequently, **Dayon Okello Ochieng** and **Emmanuel Opiyo Ochieng** are each hereby sentenced to fourteen 14 years imprisonment for the offence of manslaughter contrary to *Section 202* as read with *Section 205* of the *Penal Code.* 37. Pursuant to *Section 333(2)* of the *Criminal Procedure Code,* the court has taken into account the period each accused person has remained in custody pending trial. Accordingly, the sentences imposed upon the two accused shall run from 19th June, 2024, being the date on which they were first remanded in lawful custody. 38. Right of appeal 14 days. 39. This file is hereby closed. DELIVERED, DATED & SIGNED this 28th day of July, 2026. **JOE M. OMIDO** **JUDGE** **Accused:** Both present. **Ms. Muema,** Prosecution Counsel. **Mr. Bagada,** Counsel for the 2nd accused. **Mr. Bagada,** holding brief for **Mr. Okello** for the 1st accused. **Mr. Ngoge & Mr. Juma,** Court Assistants.