https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8719

Republic v Ogola & another (Criminal Case E005 of 2022) [2026] KEHC 8719 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8719 (KLR) Republic of Kenya In the High Court at Siaya Criminal Case E005 of 2022 DK Kemei, J June 23, 2026 Between Republic Prosecution and Edwin Odhiambo Ogola 1st Accused Lucas Omondi Ogola 2nd Accused Ruling 1.The accused herein Edwin Odhiambo Ogola and Lucas Omondi Ogola have been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 23rd day of January, 2022 at Hawagaya village in East Uholo Location, Ugunja Sub-Location within Siaya County murdered one Chrispin Opondo Were. Vide the judgment of this court dated 22nd May 2026, both accused were found guilty and convicted for the offence of murder. 2.Sentencing hearing commenced on 9th June, 2026. Mr. Oduor for both accused submitted interalia: that both accused are sorry and remorseful; that the accused persons pray for lenient sentences; that the 1st accused is a father of three minors and the breadwinner for the family; that the 2nd accused is not yet married but he takes care of his mother; that he is suffering from mental challenges; that the pre-sentence reports are favorable as the accused do not pose any threat to the society; that the judgment captured the issue of trespass leading to provocation on the part of the accused persons. 3.Mr Soita for the prosecution submitted inter alia; that during the delivery of the judgment, the accused persons vehemently denied involvement. That they are not remorseful. That the accused persons and family have not approached the victims for reconciliation. That the autopsy report on the injuries inflicted be considered. That if the court is in favour of a non-custodial sentence, then a custodial period be first served in order to take care of the scales of Justice. 4.This court called for pre-sentence reports by the Probation department. The same were duly availed. The summary of the reports are inter alia; that the offence arose from a long-standing land dispute and alleged provocation/trespass by the victim’s family, who are blood relatives; that on the material date, the victim came while armed with a panga after a stone was thrown onto the roof of the deceased’s family and that a fight ensued leading to death; that the offenders are remorseful and seek for leniency; that the area chief, village elder, and community describe them as humble; that the victim’s family wants maximum punishment and threatens retaliation if a non-custodial sentence is given; that the local administration indicate that the families have a land dispute problem that has not been resolved as the succession proceedings are yet to be commenced; that the probation recommends that the accused persons require to undergo rehabilitation so as to handle their anger management related issues. 5.I have given due consideration to the oral submissions and the pre-sentence reports. It is noted that the accused persons have been convicted of murder which attracts a maximum sentence of life imprisonment and not death sentence following the decision by the Supreme Court in Francis Karioko Muruatetu Vs Republic [2017] Eklr which held that the mandatory sentence of death was unconstitutional. Looking at the circumstances of the case, iam of the view that the accused are first offenders and thus they do not merit a sentence of life imprisonment. The circumstances are that the family of the accused persons and the deceased were relatives and shared ancestral land and that they had had frequent disputes brought about by the family of the deceased who kept on grazing their animals on the crops belonging to the family of the accused persons and which created a lot of animosity between them. It transpired that on the night in question, the accused and another who is still at large had gone to pelt the roof of the family to the deceased and that the deceased and his brother decided to go out and check and bumped onto the accused persons who attacked them and that the deceased was not so lucky as he was overwhelmed and killed and his body dumped into a nearby river while his brother escaped by the skin of his teeth. Even though the accused and their family had had problems with the family of the decased, it was not right for the accused herein to seek to eliminate the deceased. The accused therefore took the law into their hands. Had they opted to raise their grievances to the elders or local authorities, the deceased could be alive today. 6.It 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 aged around 50 years was subjected to several panga cuts on his body at the hands of the accused persons herein and one Peter Okoth who is still at large. The pathologist Dr Tony Kinja (PW6) noted several cut wounds on the head and neck and formed the opinion that the cause of death was excessive hemorrhage from severed jugular vein.. He produced the autopsy report dated 0/2/2022 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 Vs. 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 Vs. 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. Indeed, the perennial land dispute is yet to be resolved. Even though the accused persons and the local administration are of the view that the family of the deceased had been grazing their animals on their crops and thus a provocation, I find that the same did not warrant them to plan to eliminate the deceased as a way of revenge. This was unfortunate and unlawful. The animosity is still rife and thus there is no harmony and peaceful co-existence between the two families who are actually neighbours and related by blood. This would seem to speak to a lack of remorse on the part of the accused persons and their family towards the family of the deceased. The pre-sentence report recommends non-custodial sentence and rehabilitation for the accused persons. It has transpired that the accused persons are persons of ungovernable anger going by their conduct in viciously slashing the deceased with a panga and later loading the body onto a wheelbarrow and dumping it into a nearby river. This was rather brutal and unwarranted act on the part of the accused persons. Iam of the considered view that the accused persons herein require a comprehensive custodial rehabilitation in order to enable them to undergo the requisite rehabilitation so as to work on their anger related issues before being released back to the society. 10.It is noted that the accused persons herein had been out on bond throughout the trial and therefore the application of section 333(2) of the Criminal Procedure Code does not apply and that the sentence to be imposed should commence from the date of conviction. Iam of the view that a sentence of ten (10) years’ imprisonment for each accused is appropriate in the circumstances. 11.In view of the foregoing observations, i order each of the accused persons herein Edwin Odhiambo Ogola and Lucas Omondi Ogola to serve a sentence of ten (10) years’’ imprisonment which shall commence from the date of conviction namely 22/5/2026. DATED AND DELIVERED AT SIAYA, THIS 23RD DAY OF JUNE 2026.D. KEMEIJUDGEIn the presence of:Edwin Odhiambo Ogola.........1st Accused.Lucas Omondi Ogola...........2nd Accused.Oduor........................for Both AccusedSoita........................for ProsecutionMaurine......................Court Assistant.