https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9801

Republic v Saka (Criminal Case 20 of 2016) [2026] KEHC 9801 (KLR) (3 July 2026) (Sentence) Neutral citation: [2026] KEHC 9801 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Case 20 of 2016 JRA Wananda, J July 3, 2026 Between Republic Prosecutor and Musa Saka Accused Sentence 1.The accused person was charged with two counts of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 27/02/2016 at Chepkemel Village, Chepsaita Location in Eldoret West District, within Uasin Gishu County, he murdered Mary Kadesa Musa and Fefa Musasia, his own 2 children aged 11 and 2 years, respectively. The accused denied the charges and the matter proceeded to full trial after which, by the Judgment dated 17/12/2025, the accused was found guilty and convicted. 2.Regarding the sentence to be meted out, I directed that a pre-Sentence Report be prepared and filed, which was done. The Report, filed on 27/02/2026, and prepared by the Probation & Aftercare Service, Uasin Gishu County, indicates that it was compiled on the basis of information obtained from, inter alia, the Court file, police file, the accused, family members of both the accused and the deceased, local administration, and observations made by the Probation Officer during field study. 3.During the sentence hearing conducted on 3/03/2026, Mr. Mathai, Counsel for the accused, submitted that the accused is 53 years old, a father of 4 children but 2 are deceased, that he was the sole provider, and that at the time of his arrest, he left the children with well-wishers. He urged that the accused is a first offender, he is remorseful and regrets the events that led to the death of the children, that he has, while in prison, undergone theology courses, he suffers from chronic ulcers and depression and he requires constant medical attention, and that his family has forgiven him. He prayed for a lenient non-custodial sentence, and pointed out that the accused has been in remand custody for close to 10 years. He prayed that if the accused is to be jailed, then the prison sentence should not exceed more than 16 years and should be subjected to the period already served in remand custody. Regarding the statement in the Pre-Sentence Report that the community is not willing to accept the accused back and may harm him, Counsel contended that the same does not compromise his constitutional rights. I note that Mr. Mathai had also filed the written Submissions dated 9/02/2026 but which basically simply restates the law on sentencing and reiterates the matters he already submitted as above. 4.Ms. Muriithi, on her part, submitted that although the accused is a first offender, two young lives were lost, the family of the deceased is still emotionally disturbed, and the manner in which the accused committed the murder was extremely cruel against innocent children. She submitted that being the father, the accused abused his position of trust, that the Pre- Sentence Report confirms that the community is not willing to receive the accused back, and that the surviving children are still traumatized. In the end, she opposed a non-custodial sentence, and, instead, prayed for a severe custodial sentence. Determination 5.The applicable law on sentence for the offence of murder is Section 204 of the Penal Code which stipulates that “any person convicted of murder shall be sentenced to death.” 6.It is now however generally agreed that in spite of the mandatory language employed by the statute, the Courts nonetheless still retain discretion in sentencing. It is on this basis that in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Supreme Court declared the mandatory death sentence unconstitutional insofar as it also does not allow for consideration of mitigation. 7.In determining sentence, I take into account the said Supreme Court decision in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR) in which it guided that, in sentencing, the following mitigating factors would be applicable; (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; and, (h) any other factor that the Court considers relevant. 8.Similarly, the Court of Appeal, in the case of Daniel Kipkosgei Letting Vs. Republic [2021] eKLR, pronounced as follows;“With regard to the above, we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..” 9.Further, Majanja J, in quoting Francis Karioko Muruatetu (supra), in the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, stated as follows:“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………” 10.With the above guidelines in mind, I have considered the circumstances surrounding the commission of the offence. Regarding the manner in which the accused committed the murders, he is reported to have returned home at night while drunk, beat up his children and deliberately fed them poison. Despite the immediate and life-threatening condition of the children arising from the poisoning, characterized by severe distress and pain, the accused demonstrated complete disregard for their survival. Rather than seek quick medical intervention or help from neighbours, the accused chose to confine the suffering children inside the house, and spent the entire night with them therein, thus wilfully quashing any little remaining chance of help that could have mitigated their agony or saved their lives. His self-exposure to the same poison serves as damning evidence of a calculated, albeit failed, murder-suicide plot. The timeline and circumstances indicate that his intent was absolute; to annihilate his entire family. His self-poisoning was the act of a man driven by malice, a twisted attempt to inflict the ultimate punishment upon his wife by wiping out the household for challenging his authority, and abandoning the matrimonial home. 11.I have also considered the contents, findings and recommendations of the Pre-sentence Report. The salient observations I make therefrom are that the accused has a history of taking alcohol, that he regrets committing the offence, and claims that he was frustrated due to his unstable marriage which left him with the sole responsibility of taking care of the children when his wife jumped out of the marriage. Regarding his family members, they are said to have expressed strong support for him, describing him as a responsible father and are appealing for leniency in his sentencing. The wife of the accused, the mother of the murdered children, on her part, is said to have expressed a lot of bitterness for the accused, and is said to still not comprehend how a father figure could poison his own children. It is reported that although she agrees that they had domestic run-ins, she believes that there was a better way for the accused to handle the situation rather than poison the innocent children. It is reported that the children who survived have not healed from the loss of their siblings, and the mother is said to be still in fear that the accused may retaliate and turn against her and/or the remaining children, and she therefore strongly opposes a non-custodial sentence for the accused. Regarding community members, they are said to have been hesitant to comment about the acceptance of the accused back to the community and that some of them felt that he would pose a threat if he returned. In the end, the Report does not recommend a non-custodial sentence. 12.Additional aggravating circumstances in this case are displayed by the contents of the Post-Mortem Report. According to the Report, the cause of death for both children was “cardiopulmonary arrest”, a direct and immediate consequence of acute “organophosphate poisoning”. The presence of lethal chemical agents in the foodstuffs ingested by the children indicates that the accused poured high amounts of toxic poison in the food he fed the children by which, he ensured, compromised their vital organs. 13.The person standing before this Court is not a stranger to the victims, nor is he a mere passer-by in the lives of the children he poisoned to death. He was their father. By virtue of this sacred biological and moral bond, the accused bore the absolute responsibility to provide for their material needs and, and to ensure their safety and security at all times. Instead of acting as their shield, the accused became the instrument of their destruction. The children were young, vulnerable, entirely innocent and looked to their father for protection but their lives were cut short in a brutal violation of the ultimate duty of care that a parent owes a child. 14.Although the accused is said to have had no previous criminal history, and is currently 53 years in age, this Court must send an unequivocal and resounding message that the extra-judicial taking of a human life is fundamentally unacceptable as the law recognizes the sanctity of life as an absolute right. Even if the Court were to accept that the tragic outcome was unintended, no level of stress can ever justify or excuse actions that result in the death of helpless children. I will therefore impose a prison sentence but since I find no indication that the accused was at any point released on bond or bail since his arrest after occurrence of the incident on or about 27/02/2016, in accordance with the provisions of Section 333(2) of the Criminal Procure Code, the period that he will serve the prison sentence shall be mitigated as a result of consideration of the period he has already served in remand custody. Final Orders 15.In circumstances, I make orders as follows:i.I hereby sentence the accused, Musa Saka, to serve thirty-five (35) years imprisonment for each of the two counts of murder, which sentences shall to run concurrently.ii.In computing the term to be served in prison, the period already spent by the accused in custody during the trial, shall be deemed as already served portion of the prison term. In other words, the period that the accused is to serve in prison shall be computed from the date when he was arraigned, namely, 11/04/2016.iii.Right of appeal within 14 days is hereby explained to the accused. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026...........................WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Accused person present physically in CourtRotich h/b Mr. Mathai for the accusedMs. Muriithi for the StateCourt Assistant: Brian Kimathi