https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10776

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CRIMINAL CASE NO. E013 OF 2024** **REPUBLIC................................................................PROSECUTION** **-VERSUS-** **CHRISPIN KENNEDY OWAMBA.....................................1ST ACCUSED** **VINCENT OCHIENG ONGORO...................................2ND ACCUSED** **RULING ON SENTENCE** 1. The two accused person herein, Chrispin Kennedy Owambo and Vincent Ochieng Ongoro 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 the 14th day of September 2023, at River Nzoia Bridge in Nzoia shopping centre in Siranga Sub Location, Ugunja Sub County, within Siaya County, jointly with others, not before the court murdered one Jared Ongoro Odhiambo. Vide the judgement dated 26/6/2026, the two accused persons herein were found guilty and convicted accordingly. 2. The first hearing commenced on 26th June, 2026. Mr. Okuta and Mr Alego for both accused submitted interalia: that the court do extend leniency in the matter; that the accused persons even though they still maintain their innocence merit leniency from the court; that the 1st accused is an orphan; that the 2nd accused is the breadwinner for his family and takes care of his elderly mother; that the court to impose a lenient sentence; that he takes care of his mother; that the 2nd accused takes care of the children of the deceased. 3. M/s Nakholi for the prosecution submitted inter alia; that the accused persons are first offenders; that the offence is serious and calls for the maximum sentence. 4. This court called for pre-sentence reports by the Probation department. The same were duly availed and are dated 2/7/2026. As regards the 1st accused the report indicates inter alia; that he still maintains his innocence and contends that he has been wrongly convicted and hence he does not take any responsibility for the offence; that he has not expressed any remorse for the offence as he does not acknowledge any culpability; that due to his stance, then any interventions towards rehabilitation within the community would be difficult to implement; that; that due to the fact that he did not have a functional family, he fell into wrong groups and was thus lured by the 2nd accused into committing the offence herein; that the family of the deceased are of the view that a custodial sentence is merited to serve as a lesson to him and would be offenders and that they feel that he should not have agreed to be used by the 2nd accused to commit such a heinous act; that the local administration is currently grappling with high emotions in the community following the murder of the deceased and that the offenders reintegration back to the society could heighten tensions and potentially compromise public peace; that no structured reconciliation attempts have been initiated to bring about healing between the two families; that the probation department recommends for a custodial sentence. 5. As regards the 2nd accused, the pre-sentence report indicates inter alia; that he maintains that he did not commit the alleged offence and thus does not express any remorse whatsoever as he maintains that he has been wrongly convicted; that the deceased was the offender’s half- brother; that the incident has caused significant emotional distress and strained relationships among relatives and disrupted the family cohesion; that the spouse of the deceased prays for custodial sentence in order for justice to prevail; that the spouse of the deceased was chased away from her home after the burial of her husband; that the mother to 2nd accused and the deceased has been affected greatly; that the deceased’s step-brothers seek for custodial sentence since they feel that the deceased was murdered due to altercations over distribution of wealth within the offender’s family who viewed the deceased as an outsider having been sired by a different father; that the community view the incident as regrettable; that the local administration view the 2nd accused as generally as a businessman in the area and well known; that there have been tensions in the area which the local national Government Administration has managed to restore calm and that they view that any future reintegration of the offender into the community would require a structured supervision coupled with family dialogue; that the genesis of the dispute stems from some dispute and altercation over distribution of wealth within the offender’s family in that the deceased felt that he had been shortchanged by the offender and other siblings; that due to the tension within the community, the offender’s premises were vandalized and looted recently and further that the offender’s mother’s home was also vandalized and looted forcing her to relocate to a secure and safe place and likewise the offender’s spouse and children; that the local administration confirm that the children of the accused are traumatized by the turn of events and yet to resume schooling; that the accused’s spouse seeks for a lenient sentence as the offender herein used to be the breadwinner; that the home environment is still volatile and unpredictable despite efforts by the national Government and that the open hostility to the offender indicate that his security cannot be guaranteed. The probation officer recommends for a custodial sentence. 6. Upon receipt of the pre-sentence reports, defence counsels Mr Okuta and Mr Alego put in further mitigation submissions inter alia; that the reports are lopsided as they did not capture the fact that it is the 2nd accused who had been taking care of the deceased and his children; that despite the conviction of the accused persons does not of itself take away their right to innocence and that they cannot be compelled to be remorseful of an offence they did not commit; that they sympathize with the situation of the deceased; that the accused have rights of innocence even after conviction; that the court is urged to exercise leniency in the matter and to note that the 2nd accused had been taking of his elderly mother as well as the deceased and his children. 7. Mr Soita for the prosecution submitted inter alia; that the deceased suffered severe injuries which could not allow him to survive; that in order to balance the scales of justice, the accused persons should be given reasonable sentences so that the victim feels vindicated; that the young children of the deceased have been left to suffer; that the defence has not given any reason why the court should not impose stiff sentences as the accused persons are not remorseful; that the assertion by the 2nd accused that he takes care of the deceased’s children should be rejected as it was improper to kill the deceased so as to become a guardian of his children; that the local administration has indicated that there is no peace on the ground; that the accused persons have not made any attempt at reconciliation with the family of the deceased; that a reasonable jail term is needed where they will undergo reform and that the same will be in the public interest. 8. 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 deceased was a half-brother of the 2nd accused while the 1st accused hailed from the same area and that there had been some differences between the 2nd accused and the deceased over distribution of wealth left behind by their late father and in which the deceased felt that he had been sidelined on the basis that he had been sired by another man and not the biological father of the 2nd accused. The differences appear to have gone too far to the point that the 2nd accused started planning to get the deceased out of the way. It transpired that on the night in question, the 2nd accused gave instructions to the 1st accused herein to carry out the hatchet job who in turn sought the services of a boda boda operator Michael Omondi Titua (PW2) and that the two and others proceeded to execute the orders of the 2nd accused by waylaying the deceased who had just left a funeral vigil and viciously attacked him near River Nzoia Bridge leading to his death while the deceased’s companion John Fabian Ongoro (PW1) escaped with severe injuries and who lived to tell the story. The said boda boda operator (Michael Omondi Titua-PW2) was later paid for his services by the 2nd accused, I find that it was not right for the 2nd accused herein to seek to eliminate his own half-brother over differences regarding distribution of the family. I also find that the 1st accused should not have agreed to carry out the orders and wishes of the 2nd accused to eliminate the deceased. The two accused herein therefore took the law into their hands. Had the 2nd accused opted to address the distribution of the family wealth in an amicable way, the deceased could be alive today. In the same vein, had the 1st accused opted to decline the orders of the 2nd accused, the death could not have taken place. 9. 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 41 years was subjected to severe injuries on his body and more particularly the head at the hands of the 1st accused and others on instructions of the 2nd accused herein. The pathologist Dr Oluoch Otowa (PW4) who produced the autopsy on behalf of his colleague Dr Tony Kinja noted multiple fractures on the skull as well as bruises on upper and lower limbs and that the opinion formed was that the cause of death was severe traumatic brain injury secondary to brain trauma due to assault. He produced the autopsy report dated 14/9/2023 as exhibit Two. I find that the said injuries could not give the deceased a chance to survive. 10. 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 reports and the mitigation of the defence and prosecution, it is clear that reconciliations have not been made so as to ease the tension currently on the ground as captured in the pre-sentence reports. Indeed, the perennial land dispute is yet to be resolved. Even though there were disagreements between the deceased and the 2nd accused over distribution of wealth among the family members, the same did not warrant for the elimination of the deceased. The action of the 2nd accused in planning with the 1st accused for the killing of the deceased was unwarranted and uncalled for since the dispute aforesaid could easily have been resolved at family level or even by the clan elders or even by the courts. This was unfortunate and unlawful. The animosity and tension is still high on the ground and that there is no harmony and peaceful co-existence between the families of the accused persons and that of the deceased. The reports indicate that irate members of the community have already descended on the homes and premises of the 2nd accused herein forcing his family to relocate elsewhere and likewise the mother of the 2nd accused. The accused persons have not expressed any remorse over the incident and they still maintain their innocence despite the finding of their guilt and subsequent conviction by this court. Their actions led to the death of the deceased who had a young family to support and look to more years himself. The wife of the deceased is reported to have been kicked out of the family home and now fends for herself elsewhere. The probation officer has recommended for an appropriate custodial rehabilitation on the ground that there is absence of demonstrated accountability and the prevailing hostility within the community and the high likelihood of reintegration challenges. 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 before being released back to the society. 10. It is noted that the 2nd accused 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. However, the 1st accused, who has been in custody throughout will have his sentence commencing from the date of his arrest namely 24/10/2023. Iam of the view that a sentence of thirty (30) 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 **Chrispine Kennedy Awambo** and **Vincent Ochieng Ongoro** to serve a sentence of thirty (30) years’’ imprisonment. The sentence in respect of the 1st accused shall commence from the date of arrest namely 24/10/2023 while the sentence in respect of the 2nd accused shall commence from the date of conviction, namely 26/6/2026. **Dated and delivered at Siaya, this 17th day of July 2026.** **D. KEMEI** **JUDGE** **In the presence of:** **CHRISPINE KENNEDY AWAMBO........................................1st Accused.** **VINCENT OCHIENG ONGORO...............................................2nd Accused.** **OKUTA/ALEGO...................................................for Both Accused** **DAVID OTIENO- ……………………………...for 2ND Accused** **Soita............................................................for Prosecution** **MAUREENE.......................................................Court Assistant.**