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High CourtOtherCriminal Case 37 of 2019· [2025] KEHC 401 (KLR)

Republic v Lihavi & another

High Court of Kenya
23 January 2025
SCS. CHIRCHIR
676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court sentenced two murder convicts to 20 years each, ruling that hiding the crime outweighed their remorse and family responsibilities.

What this practically means

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Executive summary

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This is a sentencing decision of the High Court at Kakamega (S. Chirchir, J) in Criminal Case 37 of 2019, following the conviction of Faistine Lihavi (1st Accused) and Erick Mayubu (2nd Accused), a married but estranged couple, for the murder of the deceased. In mitigation, the 1st Accused stated she had been in custody since her arrest on 1st July 2019, was remorseful, and had five children to care for; she sought a non-custodial sentence. The 2nd Accused, aged 37, also sought leniency, urging that the children would be abandoned if both parents were jailed, and argued that the adverse social inquiry report was persuasive but not binding. The State, through Ms Osoro, opposed leniency, submitting that the 1st Accused was the motive behind the killing (a love affair between the deceased and the 1st Accused offended her), that the deceased was tied and thrown into a raging river without a chance of survival, and that a sentence reflecting the sanctity of life was warranted. The court treated both Accused as first offenders and acknowledged the adverse effect of parental incarceration on the children, but found the 'punishment' administered on the deceased, the disregard for the dignity and sanctity of human life, and the attempt to conceal the crime by throwing the body into River Yala to be aggravating. Each Accused was sentenced to 20 years' imprisonment, deemed to have taken effect from 26/6/2019, with a 14-day right of appeal.

Key legal issues

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01

Whether the Accused persons deserved a non-custodial sentence

Holding

Non-custodial sentence refused; each sentenced to 20 years' imprisonment

Reasoning

The court treated both Accused as first offenders and considered their remorse and the effect of incarceration on their children. However, the circumstances of the offence - tying the deceased's hands, throwing him into a raging river, and attempting to conceal the crime - showed complete disregard for the sanctity of human life and outweighed the mitigation.

p. 2
02

Weight of the social inquiry report

Holding

Social inquiry reports are persuasive but not binding on the court

Reasoning

The 2nd Accused argued that the adverse community report in the social inquiry report should not bind the court, and the court proceeded to sentence on its own assessment of mitigation and aggravation.

p. 1

Legal principles established

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  • An attempt to conceal a crime is an aggravating factor in sentencing.
  • Remorse and being a first offender are mitigating factors.

Court orders

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  1. 1.Each of the Accused persons sentenced to 20 years in prison
  2. 2.Sentence deemed to have taken effect from 26/6/2019, the date they were first arraigned in court
  3. 3.Right of appeal within 14 days
Jurisdiction invoked
Original criminal jurisdiction over murder under the Penal Code and Criminal Procedure Code (provisions not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Lihavi & another", Case Analysis (2025). Criminal Case 37 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.