https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9970

Republic v Sericho (Criminal Case 231 of 2017) [2026] KEHC 9970 (KLR) (3 July 2026) (Sentence) Neutral citation: [2026] KEHC 9970 (KLR) Republic of Kenya In the High Court at Makueni Criminal Case 231 of 2017 TM Matheka, J July 3, 2026 Between Republic Prosecutor and Samuel Letarum Sericho Accused Sentence 1.In 2012 the accused was the OCS Makindu Police Station. On 9/1/2012, he shot Samuel Macharia Mason 4 times killing him on the spot in Joyland Bar and Restaurant at Makindu Township. 2.After a trial that spanned 14 years, or thereabouts, with the file travelling from from Machakos, to Makueni, the matter was heard partly by myself and partly by Hon C. Kariuki J. matter and finally came to an end. 3.On 8/5/2026 the accused was convicted for murder contrary to section 203 as read with section 204 of the Penal Code. 4.The only issue now is what sentence is appropriate in the circumstances of the case 5.The basis for the sentencing hearing cannot be overemphasized. This is evident from the first edition of the Judiciary Sentencing Policy Guidelines where the then Chief Justice made this observation;Sentencing has been a problematic area in the administration of justice. It is one of those issues that has constantly given the Judiciary a bad name – and deservedly so. Sometimes out rightly absurd, disproportionate and inconsistent sentences have been handed down in criminal cases. This has fuelled public perception that the exercise of judicial discretion in sentencing is a whimsical exercise by judicial officers.11Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga 6.The Hon Justice Msagha Mbogholi stated this in the same guidelinesReaching a fair decision in sentencing is neither an easy nor straightforward process; several considerations come into play. While sentences are defined by law, the measure of what is an appropriate sentence in a given case is left to the discretion of judges and magistrates. As Justice McArdle is famously quoted saying, “Anyone can try a case. That is as easy as falling off a log. The difficulty comes in knowing what to do with a man once he has been found guilty.” Sentencing is as important as all other aspects of a criminal trial. Sentencing in Kenya has been marked by instances of unwarranted disparities, lack of certainty and transparency in decisions, disproportionate sentences and lack of uniformity in sentences with respect to same offences committed under similar circumstances. In other respects, lack of sufficient public education has contributed to misconceptions about sentencing, especially the undue focus on custodial sentences to the exclusion of other appropriate forms of sentences.22Chairperson - Judicial Taskforce on Sentencing 7.Sentencing must be based on the principles of fairness, justice, proportionality and commitment to public safety 8.During the sentence and mitigation hearing the prosecution through Ms. Musango urged the court to consider that the trial had taken over 12 years – by design; that the deceased was 28 years old and that despite the 14 years period the matter had pended in court the accused person had never reached out to the family of the deceased to tender an apology on reconciliation. 9.That this was regrettable conduct underserving the mercy of the court. That the deceased was unarmed, did not provoke the accused person to warrant the fatal shooting – that the accused was a very high ranking officer, an OCS – that his act of shooting the deceased was an act of Abuse of Authority; his duty was to protect not to harm. Counsel urged the court to take into account the worrying statistics of people dying at the hands of rogue police officers – she urged the court to render a deterrent sentence – as provided for under section 204 of the Penal Code – the death penalty. 10.Mr. Hassan, defence counsel submitted that accused was 1st offender aged 71 years old who had served the National Police for 32 years with a spotless record – that he maintained that there were circumstances in the club that led to provocation. That the court has discretion in sentencing and is not bound by the mandatory sentence. 11.He contended that the delay of the matter was not by design but due to various reasons as will the reflected by the record. That it was futile to trace the family of deceased who came for Nakuru – and the incident happened in Makindu – 12.That accused was sole breadwinner of his family with school going children. The court was urged to take into account that the accused suffered depression, diabetes and high blood pressure. 13.Counsel referred the court to R vs Kosicha Kanchora Gura [2020] KEHC 4957 (KLR) for the proposition that the court, considering the age of the accused, and his known medical conditions can grant him a lenient sentence. In That case, the court was urged to grant a non-custodial sentence but the court was of the view that the accused needed to spend time in custody – and gave a combined sentence – 5years imprisonment – part custodial, part non-custodial. 14.I also perused the Presentence Report filed by PACs– and noted that the age of the accused person and that he is said to suffer from diabetes and high blood pressure. However, no medical report has been placed before the court to support that position. 15.I have had sight of the sentencing Policy Guidelines at 3.3 which require this court to ask itself (where old age/illness is submitted)“Whether the old age or illness will cause the offender to experience undue and unjustifiable hardship in custody and whether the conditions in custody would be termed in human bearing in mind the offender’s state...And whether the offenders state is one that would cause undue burden on other offenders and/or prison officers taking care of him” 16.In Kosicha Kanchora Gura, the court had the advantage of seeing the accused persons’ medical reports and during the trial the accused person was evidently ill. The reports reflected the accused’s medical history. 17.In this case- there are none to support the submissions by counsel or the statements made by the probation officer. 18.The PACS report concludes:-The offenders’ family is the firstborn amongst the eight children. The family was raised in a strong Christian faith.He is polygamous, married to three wives, two have died, leaving him with one wife and nine children, four are still young and in various educational institutions, and rely on him for all their needs. The offender is a retired civil servant who worked as a Police Officer, ranked as a Chief Inspector of Police working as the Officer Commanding Station (OCS) at Makindu Police Station.The offender has not shown remorse, as he has not taken responsibility for his actions. However, he is of advanced age with health issues, who has been psychologically affected since the onset of this case.His interdiction and eventual retirement socially and economically affected his family negatively as they solely relied on him as their breadwinner; some of his children dropped out of School as a result of this situation. His family and community in Maralal, where he hails from, know him as a person whose life has no criminality and therefore prays for leniency on his behalf from the Honorable Court. The community and his family have expressed favorable reports towards him.The victim’s family continue to grapple with the profound anguish of losing their loved one in such a devastating manner. As they voice their deep resentment towards the offender’s actions, they hold onto hope that their son’s quest for justice will eventually prevail.RecommendationYour ladyship, based on the summary findings of the social inquiry concerning the offender presented before this Honourable Court, acknowledging that the offender has been convicted of a capital offense, mandates a specific sentence as stipulated in the Penal Code. I trust that this report will provide valuable insights to assist the Honourable Court in making a just decision regarding the sentencing of the offender. 19.The report indicates that the offender maintains his innocence and that is within his rights. 20.Be that as it may, the Ruling in Kosicha is persuasive in that the circumstances are almost similar the only difference being that the accused there was remorseful, ready to reconcile with the family of the deceased and had provided medical records. 21.The authority states that a sentence must also take into account the objectives of sentencing:-1.Retribution: To punish the offender for his/her criminal conduct in a just manner.2.Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3.Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.4.Restorative Justice: To address the needs arising from the criminal conduct such as loss and damages, Criminal conduct ordinarily occasions victim’s, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.5.Community Protection: To protect the community by incapacitating the offender.6.Denunciation: To communicate the community’s condemnation of the criminal conduct. 22.Taking the foregoing into account the accused’s action of shooting he deceased for no apparent reason is an act that should be deterred. No police officer should use their power in that manner, In addition he held a position that called for restraint, and wisdom of judgment, something that he never exercised. 23.His attitude towards the offence is such that PACs did not think he could benefit from non-custodial rehabilitation, and there was no possibility of restoration /restitution. A custodial sentence would provide the retribution acknowledged even in Kosicha. 24.Taking into account the fact that Muruatetu 1 outlawed the mandatory nature of the death sentence I find that the death sentence would not be appropriate. Also life imprisonment would also not be an appropriate sentence considering the circumstances for the accused. 25.I have considered both the mitigating and aggravating factors in this case. The aggravating factors outweigh the mitigating factors with regard to the offence. Regarding the circumstances of the accused, I have considered that he is a first offender, his age, his attitude towards the offence, and the need for deterrent sentence. 26.The accused is sentence to 15 years imprisonment with effect from the date of conviction (8th May 2026). 27.Right of Appeal 14 days. RULING ON SENTENCE DATED SIGNED AND DELIVERED VIRTUALLY AT KABARNET THIS 3RD JULY 2026.MUMBUA T MATHEKAJUDGEIn the presence of:-CA ChrispolAccusedMs. Musango for stateMr. Hassan for accused.