https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10763

Republic v Osala (Criminal Case E008 of 2026) [2026] KEHC 10763 (KLR) (17 July 2026) (Sentence) Neutral citation: [2026] KEHC 10763 (KLR) Republic of Kenya In the High Court at Siaya Criminal Case E008 of 2026 DK Kemei, J July 17, 2026 Between Republic Prosecution and Morris Ochieng Osala Accused Sentence 1.The accused herein had 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 the 4th day of April 2026 at Ngungu village, Kabura Uhuyi Sub Location of Siaya Sub County County within Siaya County, murdered John Otieno Nderma. Following a plea agreement entered between the state and the accused, the murder charge was reduced to one of manslaughter contrary to section 202 as read with section 205 of the Penal Code with the particulars being that on the 4th day of April, 2026 at Ngungu Village, Kabura Uhuyi Sub Location of Siaya Sub Location within Siaya County, killed John Otieno Nderma. 2.The accused pleaded guilty to the aforesaid charge of manslaughter and was duly convicted. 3.The sentencing hearing proceeded on 14/7/2026. Mr Odhiambo Otieno for the defence submitted inter alia; that the accused is remorseful over the offence; that he is a total orphan and that his wife passed on last year and that he has been left alone to take care of his young children with the eldest being in Grade Four while the youngest is a toddler and that there is nobody to take care of them; that the accused’s house was razed down by the irate members of public and thus he has no place of abode; that even as the court proceeds to impose a custodial sentence, it should take into account the fact that he has sought forgiveness from the family of the deceased. 4.Mr Soita for the prosecution submitted inter alia; that the accused is a first offender; that the offence took place on 4/4/2026 and that the accused has saved judicial time by seeking for a plea bargain; that in as much as the accused has reduced the trial time, he requires time in custody in order to reform; that a custodial sentence is appropriate for purposes of rehabilitation and thereafter reintegration into society and also to balance the scales of justice. 5.This court called for a pre-sentence report by the Probation department. The same is dated 13/7/2026 and indicates inter alia; that the irate villagers razed down the accused’s place of abode; that he is a habitual consumer of illicit drinks and drugs; that the accused enjoys minimal social support within the community; that the local administration and the community are of the view that a custodial sentence is appropriate intervention in the circumstances; that the accused has been involved in violence and antisocial behaviour as well as criminal activities which have negatively influenced his standing in the community; that the home environment is still hostile towards his release as they have indicated that they will hurt him if released back to the society; that the accused’s immediate family members have expressed their reservations regarding his suitability for release on a non-custodial sentence as they are of the view that a structured custodial rehabilitation programme would provide him with an opportunity to reflect on his conduct, behavioural challenges and facilitate positive character transformation before any consideration for reintegration into the community; that the victim’s family is deeply affected by the death of their kin and are still traumatized and who are against a non-custodial sentence as there is no meaningful reconciliation; that the probation and after care services department recommends for a custodial rehabilitation. 6.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 reserved for the worst form of offenders. Looking at the circumstances of the case, I am of the view that the accused does not merit a sentence of life imprisonment. It is noted that the offence was committed as a result of a longstanding disagreement between the accused and the deceased who were both relatives and neighbours and that the dispute centred on a parcel of land on which the accused resides and which had been allocated to his parents by the deceased’s father and that it had been suspected that the accused intended to dispose and which was opposed by the deceased and which created some tension between them and that on the material date the accused and two others confronted the deceased and as a result the deceased sustained serious injuries which included strangulation. Hence, the deceased met his tragic death thanks to the accused who used excessive force. It is trite that all homicides are unlawful unless authorized by law. Had the accused used other forms such as engaging with the clan elder and local administration, the deceased could be alive today. The deceased was the accused’s neighbour and uncle and had known him and ought not to have eliminated him so as to proceed and dispose his piece of land. The autopsy report indicated that the deceased suffered hypoxic brain injury secondary to manual strangulation which did not give him a chance to survive. 7.The circumstances leading to the death of the deceased are tragic. The body of the deceased was found lying in supine position. The pathologist, Dr. Okongo noted that the body had multiple bruises on the neck and back. That he formed the opinion that the cause of death was hypoxic brain injury secondary to manual strangulation. It is trite that all homicides are unlawful and hence the deceased did not deserve to die even if he had a dispute with the accused over land. It is noted that the deceased who had been opposed to the accused’s intention to dispose of his land was not taken kindly by the accused. The accused’s claim that he was acting in self-defence is not convincing in that the several injuries inflicted on the deceased showed that the accused wanted to finish him off completely. The accused confirmed that he struggled with the deceased and later realized that he was not breathing and thus rushed to the police to lodge a report. It is quite baffling that the accused had to go to the police instead of a rushing the deceased to hospital for treatment. The said injuries could not enable the victim to survive. The accused ought to have used other avenues of redress such as raising alarm and alerting the neighbours if indeed he had been attacked instead of taking the law into his hands and killing the deceased. Had he raised alarm or dodged the deceased or in the least applying reasonable force, the deceased would be alive today. It is clear that the accused was out to get rid of the deceased who had been a hindrance to his plans to dispose of his piece of his land. I find that the deceased did not deserve to die in the manner that he did. 8.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” 9.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. 10.Looking at the circumstances of the offence as well as the pre-sentence report and the mitigation of the accused herein, it is noted that the accused herein killed the deceased with whom he had had a dispute over land in the area in which the accused wanted to dispose his land to which the decased was opposed. However, the accused’s action of eliminating the deceased instead of resorting the due process was unlawful. The accused should have used lawful channels by engaging the local authority regarding the deceased’s opposition to his attempt to dispose of his land but not to take the law into his hands. As noted above, the accused appeared overzealous and went overboard in strangling the deceased upon a violent encounter and thus used excessive force. This was unwarranted. Further, there is no evidence whatsoever that the accused sustained any injury as a result of his encounter with the deceased. The severe injuries inflicted on the deceased as per the autopsy report left no doubt that the accused intended them to cause death and no wonder that the deceased died on the spot and that the body was later found lying in supine position. It is evident that the accused is a person of ungovernable anger and that he requires to undergo comprehensive custodial rehabilitation before being allowed to rejoin the community. The pre-sentence report indicated inter alia; that he is a habitual consumer of illicit drinks and drugs; that the accused enjoys minimal social support within the community; that the local administration and the community are of the view that a custodial sentence is appropriate intervention in the circumstances; that the accused has been involved in violence and antisocial behaviour as well as criminal activities which have negatively influenced his standing in the community; that the home environment is still hostile towards his release as they have indicated that they will hurt him if released back to the society; that the accused’s immediate family members have expressed their reservations regarding his suitability for release on a non-custodial sentence as they are of the view that a structured custodial rehabilitation programme would provide him with an opportunity to reflect on his conduct, behavioural challenges and facilitate positive character transformation before any consideration for reintegration into the community; that the victim’s family is deeply affected by the death of their kin and are still traumatized and who are against a non-custodial sentence as there is no meaningful reconciliation; that the probation and after care services department recommends for a custodial rehabilitation. 11.It is noted that the accused did not manage to post bail and had been in remand custody all along and hence the provisions of section 333(2) of the Criminal Procedure Code must be taken into account during the sentencing. The sentence shall therefore run from the date of arrest, namely 4/4/2026. 12.In the result, i order the accused herein Morris Ochieng Osala to serve a sentence of ten (10) years imprisonment which shall commence from the date of arrest namely 4th April, 2026. DATED AND DELIVERED AT SIAYA THIS 17TH DAY OF JULY 2026D.KEMEIJUDGEIn the presence of :Morris Ochieng Osala........ ..AccusedOdhiambo Otieno.. ........for AccusedSoita...... .....for ProsecutionMaureene...................... ...Court Assistant