https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12443

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CRIMINAL CASE NO. E032 OF 2024** **REPUBLIC………………………………………………….PROSECUTION COUNSEL** **-VERSUS-** **SAMWEL OTIENO OREDI alias JOMBI alias FUNGUA…………….ACCUSED** **SENTENCE** 1. The accused person, **Samwel Otieno Oredi alias Jombi alias Fungua** was vide the information dated 18th November, 2024, initially charged with the offence of murder contrary to *Section 203* as read with *204* of the *Penal Code, Cap 63 Laws of Kenya.* The particulars of the offence were that on the 6th day of November, 2024, at Nyawita area, Kisumu Central Subcounty within Kisumu County, the accused person murdered **Willis Christopher Odhiambo alias Mzee.** 2. He denied the charge and a plea of not guilty was accordingly recorded. 3. Pursuant to a plea agreement dated 25th May, 2026 executed and entered into by the accused and the prosecution, the charge of murder was reduced and vide the substituted charge sheet dated 5th June, 2026, the accused person was charged with the offence of manslaughter contrary to *Section 202* as read with *Section 205* of the *Penal Code.* The particulars thereof were that on the 6th day of November, 2024, at Nyawita area, Kisumu Central Subcounty within Kisumu County, the accused person unlawfully killed **Willis Christopher Odhiambo alias Mzee.** 4. The accused person pleaded guilty to the reduced charge on 15th June, 2026 and was consequently 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. In exercising its sentencing discretion, the court is guided by the objectives of sentencing as recognized in the *Judiciary Sentencing Policy Guidelines,* namely retribution, deterrence, rehabilitation, restorative justice where appropriate, community protection and denunciation. 7. The court has considered the mitigation advanced by the accused, the presentence report dated 6th July, 2026, the circumstances under which the offence was committed, the interests of the deceased’s family, the interests of society and all relevant factors disclosed by the material on record. 8. The court has taken into account that the accused is a first offender and that he accepted responsibility for the unlawful killing by entering into a plea agreement with the prosecution. By pleading guilty to the reduced charge of manslaughter, he spared the deceased’s family the ordeal of a full trial and saved valuable judicial time. 9. The court has also considered the mitigation advanced on his behalf that he is a young man with a family, that he sustained injuries during the altercation, and that the offence was not premeditated. These are relevant mitigating considerations which the court is obliged to weigh in his favour. 10. The court has equally considered the pre-sentence report. The report indicates that the accused’s family regrets the unfortunate incident and appeals for leniency. However, it is noteworthy that there has been no attempt by the accused’s family to reach out to the deceased’s family to express remorse or pursue reconciliation. 11. Restorative justice is one of the recognized objectives of sentencing under the *Judiciary Sentencing Policy Guidelines.* While reconciliation cannot be imposed by the court, a genuine effort towards acknowledging the suffering of the victim’s family is ordinarily an important indicator of acceptance of responsibility. The absence of any such initiative considerably diminishes the prospects of restorative justice in this case. 12. The victim impact information contained in the pre-sentence report paints a painful picture of the consequences of the offence. The deceased was only twenty-five years old and, by all accounts, had his entire future ahead of him. His life was abruptly and violently cut short. His family continues to endure profound emotional and psychological trauma arising from his death. 13. Sentencing is not merely concerned with the offender; it must equally recognize the dignity of the deceased and the immeasurable loss suffered by those left behind. Although no sentence can restore the life that was lost, the punishment imposed must adequately reflect the gravity of that loss. 14. The court has also considered the circumstances in which the offence was committed. The agreed facts disclose that following an altercation, the accused armed himself with a kitchen knife and stabbed the deceased in the lower left abdomen. The injury was catastrophic. The deceased staggered home while in excruciating pain, with his intestines protruding from the stab wound. Despite being rushed to hospital, he succumbed to massive internal bleeding. 15. The post-mortem examination confirmed that the cause of death was the stab wound inflicted upon him. Although the plea agreement reduced the charge from murder to manslaughter, the facts nevertheless reveal an act of serious and unlawful violence involving the use of a deadly weapon against a vulnerable part of the human body. 16. Defence counsel urged the court to find that the accused acted after being attacked by the deceased and that he merely sought to secure his own safety. However, those assertions do not form part of the agreed factual basis upon which the plea of guilty was entered. The court cannot sentence on the basis of disputed or unproved facts. The sentence must therefore be founded on the admitted facts contained in the plea agreement and the material properly before the court. 17. While the court accepts that the offence was ultimately resolved by way of a plea to manslaughter, it cannot speculate on circumstances that were neither admitted by the prosecution nor established by evidence. 18. The court has further considered the offender’s attitude as disclosed in the pre-sentence report. Whereas counsel submitted that the accused was remorseful, the probation officer records that during the interview the offender did not express remorse for the offence. This inconsistency is significant. Genuine remorse is ordinarily demonstrated by sincere acceptance of responsibility, empathy for the victim and regret for the harm caused. It is not merely asserted through counsel. 19. While the court does not conclude that the accused is entirely devoid of remorse, it is unable to attach substantial mitigating weight to remorse that is unsupported by his own conduct and statements. 20. The court has also taken into account the views expressed by the local administration and members of the community. They oppose a non-custodial sentence, expressing concern that the offender has previously been associated with criminal activities and poses a security risk both to the community and to the deceased’s family. 21. The court approaches such views with caution because an accused person must be sentenced only for the offence before the court and not for allegations that have never resulted in conviction. 22. Nevertheless, community safety is one of the legitimate objectives of sentencing, and where credible concerns are raised regarding the risk posed by an offender, they cannot be ignored altogether. These concerns reinforce the conclusion that a non-custodial sentence would not be appropriate in the present case. 23. The prosecution proposed a custodial sentence of twenty-five years imprisonment, while the defence urged the court to impose a sentence of five years imprisonment. Sentencing, however, is an exclusively judicial function. Although the court pays due regard to the proposals made by the parties under the plea agreement, it is not bound by them. The court must ultimately impose a sentence that is fair, proportionate and consistent with the law, taking into account all the aggravating and mitigating circumstances of the case. 24. The offence of manslaughter under *Section 205* of the *Penal Code* attracts a maximum sentence of life imprisonment. The appropriate sentence must therefore be determined within a broad discretionary framework. 25. In exercising that discretion, the court has balanced the mitigating factors in favour of the accused, namely his status as a first offender, his acceptance of a plea agreement, and the saving of judicial time, against the aggravating circumstances, including the use of a knife, the fatal injury inflicted upon a vulnerable part of the body, the devastating impact upon the deceased’s family, the absence of demonstrated remorse before the probation officer and the unsuitability of a non-custodial sentence. 26. The court is satisfied that the objectives of sentencing in this case are best served by a substantial custodial sentence. Such a sentence will mark society’s denunciation of the unlawful taking of human life, deter similar acts of violence, protect the public and afford the offender an opportunity for reflection and rehabilitation. 27. At the same time, the sentence must recognize that the accused accepted criminal responsibility through a plea agreement and was convicted of manslaughter rather than murder. A sentence that is either excessively lenient or unduly severe would fail to achieve the proper balance required by law. 28. Having carefully weighed all the relevant circumstances, the court is persuaded that a custodial term of twelve (12) years imprisonment is just, fair and proportionate. 29. In accordance with *Section 333(2)* of the *Criminal Procedure Code,* the court has taken into account the period spent in custody. The record shows that the accused has remained in custody since 18th November, 2024, when he was first presented before this court. Consequently, the sentence of twelve (12) years imprisonment shall run from 18th November, 2024. 30. Accordingly, the accused, **Samwel Otieno Oredi alias Jombi alias Fungua,** is hereby sentenced to twelve (12) years imprisonment, the sentence to run from 18th November, 2024, being the date that he was first remanded in custody pursuant to *Section 333(2)* of the *Criminal Procedure Code.* 31. Right of appeal 14 days. DELIVERED, DATED & SIGNED this 27th day of July, 2026. **JOE M. OMIDO** **JUDGE** Accused: Present. **Ms. Muema,** Prosecution Counsel for the State. **Ms. Odipo,** Defence Counsel. **Mr. Ngoge & Mr. Juma,** Court Assistants. **Ms. Muema:** The State appreciates the sentence. Justice has been served. May the soul of the deceased victim rest in peace. **Ms. Odipo:** I seek to be discharged. **Court: Ms. Odipo** is hereby discharged and shall be paid for her services. This file is hereby closed. **JOE M. OMIDO** **JUDGE**