Soit v Republic

4. PW3, Esther Jelimo Ruto was the employer of the appellant at a nearby bar. On the material day at about 7.30 pm, the appellant left the bar, shortly thereafter, PW1 came calling with bloodstained clothes, and reported that the appellant had stabbed the deceased. She accompanied him back to the scene and found the deceased lying in a pool of blood. She later discovered that the appellant had closed the bar and disappeared and his cell phone switched o. PW4, IP Jumbe Brown, the investigating ocer, received a report of the incident from the area assistant chief. On visiting the scene, he found the deceased lying dead with a stab wound on the neck. He processed the scene, removed the body to hospital, and later obtained a post‑mortem report which conrmed the cause of death as massive haemothorax and severed aorta and pulmonary trunk. He concluded that the appellant acted with malice aforethought, and eventually arrested him after a manhunt and charged him with the information. 5. Placed on his defence, the appellant in an unsworn statement denied involvement in the death of the deceased, stating that he had met the deceased earlier in the day exchanged money and parted ways. He claimed that he only heard of the deceased’s death the following day and was not therefore responsible for it. 6. After considering the evidence presented by both sides, the trial court found that the prosecution had proved its case beyond reasonable doubt. It held that the appellant was positively identied by PW1 and PW2 under sucient lighting conditions, that their testimonies were consistent and corroborated by PW3 and PW4, and that the post‑mortem report conrmed the fatal injury inicted. The court rejected the appellant’s defence as a mere denial and found that the appellant had the requisite malice aforethought, having used a lethal weapon on vulnerable part of the body of the deceased. Consequently, the appellant was convicted of the information and sentenced to 20 years imprisonment. 7. Dissatised with the conviction and sentence aforesaid, the appellant lodged the instant appeal. It is however not necessary to set out the grounds thereof, particularly on conviction in view of what transpired when the appeal was called out for plenary hearing. On this occasion, the appellant appeared courtesy of our virtual platform from Kisii main prison being represented by Ms. Lumallas, learned counsel. The respondent, on the other hand was represented by Mr. Okeyo, learned prosecution counsel. 8. The court inquired from the learned prosecution counsel, whether looking at the set of facts of the case and the evidence presented as a whole, this was a case of murder or manslaughter! Counsel, immediately conceded that indeed the evidence led in the trial court tendered towards manslaughter as opposed to murder. He even added that, that was the very reason he had not led his written submissions. For counsel for appellant, this was indeed the thrust of her written submissions. Having agreed that this was a case for manslaughter, we allowed parties to address us on the question of sentence only. 9. Ms. Lumallas submitted that following the concession of the respondent on conviction, the sentence imposed ought to be reduced signicantly. That the appellant had gone to school whilst in prison, gained experience, had transformed and even became a pastor which spoke to his reform as a person. Counsel proposed a sentence of about ve years would suce. 10. Mr. Okeyo on the other hand, submitted that his concession to the appeal on conviction notwithstanding, he was nonetheless persuaded that the sentence imposed by the trial court should be maintained as it was fair, neither harsh nor excessive and should be retained. 11. Having carefully considered submissions of the respective parties on the issue, we appreciate that the appellant was a rst oender, with no previous criminal record. He expressed remorse, tendered an https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1972/eng@2026-09-25 2

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apology to the family of the deceased, and was described as a man of reasonable age who was the sole breadwinner of his young family. These mitigating factors nonetheless have to be weighed, the brutality of the act. Everything considered together we are persuaded that the ends of justice would be better served by tempering deterrence with rehabilitation. In our view, a sentence of 15 years imprisonment would be appropriate. 12. Accordingly, we allow the appeal, quash the conviction for murder and in lieu thereof substitute it with a conviction for manslaughter contrary to section 202 as read with section of 205 of the Penal code. We also set aside the sentence imposed of 20 years imprisonment and substitute it with a sentence of 15 years imprisonment to run from the date of rst his arraignment in the trial Court. The sentence we have imposed stands as a rearmation that sentencing must never be an exercise in vengeance, but in measured justice. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ....................... JUDGE OF APPEAL E.C. MWITA ....................... JUDGE OF APPEAL B. ONGAYA ....................... JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1972/eng@2026-09-25 3

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