Orlale v Republic

a blood-stained panga the appellant had, the appellant's blood-stained clothes and took the deceased's body to the mortuary. 3. Nelson Omondi Odiga, (PW2) and a rm hand in the homestead, testied that he was with PW 1, PW5 and some women relatives of the deceased when he heard shouting from the house. He peeped through the window and saw the appellant slashing the deceased with a panga. He rushed to seek help from neighbours, but when he returned, he found the deceased already dead. The Area chief and police ocers later arrived and arrested the appellant. 4. PW3, Ruth Atieno Amara Obado, the deceased's wife, testied that she was at Ahero when she received information about the deceased’s death. She went and identied the deceased’s body for the postmortem examination. Testied that she had spoken to the appellant the night before the incident and found him unusually in low spirit and when she enquired about it, the appellant simply told her that he did not understand why he felt that way. 5. Dr. Stephen Omondi Obunga, (PW4) performed the post mortem on the deceased’s body on 26th May 2019. The body had multiple cut wounds to the head, hands and legs. He opined that the cause of death was massive hemorrhage resulting from multiple cut wounds caused by a sharp object. 6. On his part, Martin Juma Orlale, (PW5) a brother to both the deceased and the appellant, testied that on the material day, he was with the appellant and other family members, a neighbor called Brighton Omondi and PW 2 when the deceased and the appellant had an altercation over relocating the appellant from the family home to Ahero. PW5 cautioned the deceased against the confrontation to avoid a tragedy and it was agreed that the servant, relocate to another house within the compound instead of the appellant. When they began removing the belongings from the house, they heard screams from inside the house. He rushed to the house and found the deceased in a pool of blood while the appellant was standing over the deceased while holding a panga. The appellant threatened to attack him forcing him to ee. Shortly thereafter, the appellant emerged from the house and told PW5 not to worry since he had nished with the deceased. The appellant dropped the panga, washed himself and changed clothes. 7. Police Sergeant Jackton Wander, (PW6) and the investigating ocer in the case, testied that he received information about the murder; that he visited the scene and found the deceased lying in the house with multiple cut wounds to the head, hands and legs; that he recovered a blood-stained panga, a blood- stained wallet, and the appellant's blood-stained clothes and shoes. He prepared an inventory of the items which the appellant signed which he produced as exhibits. Investigations established that the dispute which led to the deceased’s murder revolved around family land. He charged the appellant with murder. 8. When called upon to defend himself, the appellant gave a sworn testimony to the eect that he had travelled home from Nairobi, where he worked, but his arrival caused disquiet in the family.The deceased wanted him to relocate from the family home which he resisted. The deceased and other family members attempted to remove his belongings from the house which led to an argument but PW5 intervened and it was agreed that the caretaker be the one to relocate to another house within the compound. However, the deceased insisted that he was to move which provoked him since he believed he had a right to occupy the house but not the caretaker. The argument escalated into a confrontation coupled with abusive language which the deceased did not appreciate. A physical ght ensued between the deceased and him during which he took a panga and struck the deceased on the head. He noticed a signicant amount of blood from the deceased and on realizing that he had injured the deceased, he was terried and locked the doors. He later opened the house after PW5 pleaded with him. The appellant maintained that he did not know what had happened because he was in a rage. He asked PW5 to call https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1986/eng@2026-09-25 2

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the police; cleaned himself up; voluntarily surrendered to the police and admitted that he had caused the deceased's death through the injuries he inicted on him. 9. After considering the evidence, the trial court found that the prosecution did not prove the oence of murder but had established the lesser oence of manslaughter, convicted the appellant for manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and sentenced him to 20 years' imprisonment. 10. Aggrieved by both the conviction and sentence, the appellant lodged the present appeal through a memorandum of appeal dated 9th July 2021, raising seven (7) grounds, contending that the trial court erred in; infringing his constitutional right to a fair trial guaranteed under Article 50(2)(g) and (h) of the Constitution by denying him the opportunity to eectively cross-examine the prosecution witnesses and to mitigate; sentencing him to 20 years' imprisonment which was harsh and excessive; failing to properly consider his defence; convicting him notwithstanding that the prosecution case did not meet the threshold for sustaining a safe conviction and relying on prosecution evidence that was riddled with contradictions and inconsistencies. 11. When the appeal was called out for plenary hearing, Ms. Nyagol learned counsel appeared for the appellant while Ms. Oduor learned prosecution counsel was present for the respondent. The appellant appeared from Kibos Maximum Security prison on the Court’s virtual platform. Both counsel relied entirely on their written submissions. Ms. Nyagol also informed us that the appeal is against sentence only and therefore, submissions were limited to the issue of sentence only. 12. Ms. Nyagol submitted that the sentence of 20 years imprisonment was manifestly excessive because the trial court failed to accord sucient weight to the appellant's mitigating circumstances. Counsel asserted that although the defence of provocation did not absolve the appellant of criminal liability, it substantially reduced his moral blameworthiness and it ought to have been treated as an important mitigating factor. Counsel further asserted that the appellant had been in custody for 6 years and 8 months since he was arrested on 25th August 2019, which period has adequately met both the punitive and rehabilitative objectives of sentencing. It was counsel’s view, that the trial court failed to properly consider that the appellant was remorseful that he had family responsibilities, he was taking care of orphans as well as the surrounding circumstances on the commission of the oence. 13. Counsel cited the case of Makau v Republic [2025] eKLR for the proposition that failure to consider relevant mitigating factors constitutes an error in principle, warranting appellate interference with sentence. Counsel again cited the cases of John Onyango Obala v Republic [2011] eKLR and Wanyonyi v Republic [2025] eKLR for similar submissions and urged the Court to set aside the sentence and substitute it with the period already served. 14. In opposition, Ms. Oduor submitted that the sentence imposed is lawful and lenient considering the brutality of the attack and the gravity of the injuries the appellant inicted on the deceased. Counsel emphasized that section 205 of the Penal Code prescribes a maximum sentence of life imprisonment and that in the circumstances of this case, the trial court exercised leniency and that none of the established grounds warranting appellate interference with sentence had been demonstrated. Counsel cited the case of GMB v Republic [2020] KECA 32 (KLR) for the proposition that an appellate court should only interfere with sentence where the trial court acted on wrong principles, overlooked material factors, imposed an unlawful sentence or where the sentence is manifestly excessive. Counsel further cited the cases of Ogola s/o Owour v Republic [1954] EACA 270 and Sayeka v Republic [1989] KLR to support the same submissions and urged the Court to dismiss the appeal in its entirety. 15. We have considered record, respective submissions by counsel for the parties and the applicable law. As we have already stated, this appeal is against sentence only. The issue for determination therefore, is https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1986/eng@2026-09-25 3

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whether the sentence imposed by the trial court is harsh or commensurate with in the circumstances of the case. 16. The appellant was convicted for manslaughter and sentenced to twenty (20) years imprisonment which he has challenged as excessive and disproportionate. It is trite law that sentence is a matter that rests on the discretion of the trial court. The conditions upon which an appellate court may interfere with the discretion of the trial court on sentence were stated by this Court in the case of Bernard Kimani Gacheru v. Republic [2002] eKLR as follows: “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sucient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” 17. In the case of Sayeka v. Republic (supra) this Court again stated that an appellate court will only interfere with a trial court’s sentencing discretion if the lower court applied wrong principles, ignored material factors, or imposed a manifestly excessive sentence. 18. Similarly, in Kioko v Republic [2023] KECA 759(KLR), this Court stated, referring to the case of Ogolla s/o Owuor v Republic, [1954] EACA 270, as follows: “ The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors.’ To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case.” 19. In the instant appeal, the appellant was sentenced to 20 years imprisonment following his conviction for the oence of manslaughter. Although the law prescribes for a maximum sentence of life imprisonment for the oence the appellant was convicted for, sentence is individualized and the court must take into account the circumstances of each case and impose a sentence that is commensurate with, and proportionate to, the mitigating circumstances of the particular case. There is no evidence that the appellants’ action of attacking the deceased was planned and premeditated. The facts and circumstances under which the oence was committed point out to a spontaneous act that arose from what appeared to be a family issue that was not provoked by the appellant, though his action is inexcusable. 20.According to the record of the trial court, the appellant gave mitigation through his counsel, that he was a rst oender, he was remorseful, he had a young a family which was solely dependent on him and that he had orphans he was taking care of. Although the trial court stated that it had considered the mitigation, it nevertheless imposed the sentence it did. 20. Having considered the submissions in this appeal as well as the record, and taking into account the circumstances under which the oence was committed, the appellant’s mitigation and the fact that he is a rst oenders, we are of the view, that the sentence of twenty (20) years is not only excessive but it is also not commensurate with the oence or proportionate with the objectives of sentencing. 21. The upshot is that the appeal against sentence is allowed. The sentence of twenty (20) years imposed against the appellants is hereby set aside and in place therefor, the appellant is sentenced to twelve (12) https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1986/eng@2026-09-25 4

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years imprisonment which shall run from 29th August 2019, when he was rst produced before the court. 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 original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1986/eng@2026-09-25 5

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