https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7654

Republic v Odhiambo alias Luambo (Criminal Case E041 of 2023) [2026] KEHC 7654 (KLR) (5 June 2026) (Sentence) Neutral citation: [2026] KEHC 7654 (KLR) Republic of Kenya In the High Court at Siaya Criminal Case E041 of 2023 DK Kemei, J June 5, 2026 Between Republic Prosecution and Felix Otieno Odhiambo alias Luambo Accused Sentence 1.The accused herein Felix Otieno Odhiambo Alias Luambo has been charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are particulars are that on the night of 27th and 28th day of October 2023, at unknown hours within Mur Ngiya Location in Siaya Sub County, within Siaya County, with others not before court unlawfully killed Allan Atieno Oduor. Vide the judgment of this court dated 16/4/2026, the accused was found guilty of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and was convicted therefor accordingly. 2.The sentencing hearing proceeded on 12/5/2026. Mr. Oyier for the defence submitted inter alia; that the accused is a first offender with a clean record as he has no history of violence in his home area; that the incident was tragic and isolated; that this court has rightly opined that there was no malice aforethought and thus it was a spontaneous reaction and that the accused found himself in a fight situation due to the circumstances; that the accused was accosted by the intruders and hence he acted under extreme need for safety to his person; that the accused has served as a community vigilante leader and was then on duty to take care of security during the night vigil; that the accused seeks for remorse and potential rehabilitation; that the accused has attended court without fail and regrets the incident; that a long custodial sentence will not serve the intended purpose; that the accused seeks for a no-custodial sentence or a custodial term of one year to return to the community. 3.Mr Soita for the prosecution submitted inter alia; that the autopsy indicates the cause of death as severe head injury; that the blunt force was lethal and brutal; that the witnesses testified to the circumstances and that justice must not only be done but must be seen to be done by those left behind; that the deceased was then aged 20 years; that a non-custodial sentence is not suitable as it will not be proportionate; that the deceased’s family are neighbours to that of the accused and that the accused’s family has not even bothered to contact them or even offer an apology; that to balance the scales of justice, the state urges the court to impose a custodial sentence that will reflect the sanctity of human life and be a deterrence to others in the society. 4.This court called for pre-sentence reports by the Probation department. The same was duly availed. The summary of the report is that the accused and decased hail from the same area and that the accused is one of the community vigilante members and that he had been mandated to deal with intruders during the funeral vigil and to repel them if need be. The report also indicates that the family of the accused has never bothered to even approach the family of the deceased to render an apology or even initiate any reconciliation and that they feel that the accused’s family look down upon them. That the local administration is of the view that the accused’s conduct in the whole scenario was unwarranted and that they do not recommend for a no- custodial sentence and likewise the probation officer. 5.I have given due consideration to the mitigation submissions of learned counsels and the pre-sentence report. Under Section 205 of the Penal Code, the maximum sentence for manslaughter is life imprisonment. However, the maximum sentence is usually imposed on the worst form of offenders. Looking at the circumstances of this case, iam of the view that the accused herein does not merit a sentence of life imprisonment. It is noted that the offence was committed while the accused was taking charge of a funeral vigil as one of he community vigilantes and was repelling the deceased and his group from the funeral venue. It had emerged from the evidence that the accused herein confronted the deceased and his group and orderd them to leave the funeral venue and later pursued them and then attacked the deceased with a panga and a club(rungu) whereupon the decased fell down unconsciousness. It is clear that both accused took the law unto his hands and purported to resort to the law of the jungle yet he was under obligation to hand the deceased to the authorities to be dealt with in accordance with the law if at all he had committed any offence. It transpired from the evidence that the accused attempted to blame the deceased for having attacked him and that he was defending himself but then there was no evidence whatsoever that the accused sought for any medication so as to establish that he had sustained any injuries. As was observed in the judgement of this court, the accused upon kicking out the deceased and his group later went after them and assaulted them. Had the accused not pursued the decased and his group the deceased would be alive today. The deceased therefore lost his life thank to the accused herein who was trying to show his prowess as a tough vigilante in the village. 6.It is noted that the circumstances leading to the death of the deceased are tragic in that he died a very violent death. The deceased who was a young man was subjected to untold beatings and torture in the hands of the accused herein and his associates. The pathologist Dr George Tadeus Masawa (PW6) noted a wound on the occipital region of the head extending to the frontal region and that there was a fracture of the skull as well as massive hematoma. He formed the opinion that the cause of death was severe head injury due to blunt force trauma. He produced the autopsy report dated 1/11/2023 as exhibit one. I find that the said injuries could not give the deceased a chance to survive. 7.As regards the sentence to be imposed, the Court of Appeal in the case of Charo Ngumbao Gugudu v R [2011] eKLR held as follows:Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani v R [1990] KLR” 8.According to the Judiciary Sentencing Policy Guidelines (2023), sentencing of offenders should take into account the following objectives:a)Retribution - To punish the offender for their criminal conduct in a just manner.b)Deterrence - To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.c)Rehabilitation - To enable the offender to reform from his/her criminal disposition and become a law-abiding person.d)Restorative justice - To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.e)Community protection - To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.f)Denunciation - To clearly communicate the community’s condemnation of the criminal conduct.g)Reconciliation - To mend the relationship between the offender, the victim and the community.h)Reintegration - To facilitate the re-entry of the offender into the society. 9.Looking at the circumstances of the offence as well as the pre-sentence report and the mitigation of the defence and prosecution, it is clear that the family of the accused have not made any attempt at reconciliation with the family of the deceased. This indicates that the animosity is still rife and thus there is no harmony and peaceful co-existence between the two families who are actually neighbours. This would seem to speak to a lack of remorse on the part of the accused and his family towards the family of the dec eased. Indeed, the pre-sentence report recommends a custodial rehabilitation for the accused. It has transpired that the accused is a person of ungovernable anger going by his conduct in ejecting the deceased and his group out of the funeral vigil and the pursuing them and harming them in the process. Iam of the considered view that the accused herein requires a comprehensive custodial rehabilitation in order to enable him to undergo the requisite rehabilitation so as to work on his anger related issues before being released back to the society. 10.It is noted that the accused herein had been out on bond throughout the trial and therefore the sentence to be imposed should commence from the date of conviction. 11.In view of the foregoing observations, I order the accused herein Felix Otieno Odhiambo Alias Luambo to serve a sentence of ten (10) years’’ imprisonment which shall commence from the date of conviction namely 16/4/2026. DATED AND DELIVERED AT SIAYA THIS 5TH DAY OF JUNE 2026D.KEMEIJUDGEIn the presence of:Felix Otieno Odhiambo Alias Luambo............................AccusedOyier .......................................for AccusedSoita .......................................for ProsecutionMs. Maurine ............................Court Assistant