Republic v Ouma Alfayo Marenya & 1 other

deceased just over a minor disagreement when the deceased begged for water from hi. That upon being stabbed in the stomach, the intestines of the deceased jutted out. It is submitted that the accused intended to kill the deceased and that he exhibited no regard for human life. The State maintains that death sentence is still valid and lawful in Kenya as it is the prescribed sentence under Section 204 of the Penal Code. Reliance has been placed on the case of: “ R –vs- Joseph Kuria Irungu alias Jowie & Another (2024) KEHC 2533 (KLR) (Crim) (13.3.2024) wherein Justice Grace Nzioka passed a death sentence against Joseph Kuria Irungu alias Jowie”. 7. According to the pr-esentence report, the accused person has been described by his family members as a person of quick temper and aggressive demeanor. He was however said to be the breadwinner of his family. It is stated and it also came out in the evidence of the prosecution that the accused was the one who rushed the deceased to hospital. The family of the deceased are still grieving and have not come to terms with his demise. His mother is said to have suffered emotional distress as the deceased was her only son. The victim’s family crave for a deterrent sentence while the family of the accused crave for leniency. 8. The Kenya Sentencing Policy Guidelines 2023 at clause 1.1 defines sentencing as the process by which a court imposes penal sanction once an accused person has either pleaded guilty or has been convicted of an offence upon conclusion of a trial. 9. Sentencing is a component of a fair trial as envisaged under Articles 49 and 50 of the Constitution of Kenya 2010. 10. In the Ugandan case of Attorney General –vs- Susan Kigula & Others (Constitutional Appeal No. 03 of 2006 (2009) UGSC 6 (21) the Supreme Court of Uganda rendered itself on the sentencing as hereunder:“ A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence. This is clearly evident where the law provides for a maximum sentence. The court will truly have exercised its function as an impartial tribunal in trying and sentencing a person.” 11. Similar sentiments were echoed by the Supreme Court of Kenya in the case of Francis Karioko Muruateti & Another –vs- Republic (2017) eKLR thus:“ (41) 12. It is evident that the trial process does not stop at convicting the accused. There is no doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing that the court hears submissions that impact on sentencing. This necessarily means that the principle of fair trial must be accorded to the sentencing stage too.” In the case of R -vs- Joseph Kuria Irungu alias Jowie & Another (2024) KEHC 2533 (KLR) (Crm) (13.3.2024) Sentence) Justices Grace Nzioka outlined the recognized principles of sentencing as follows:a) Justice b) Peace https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14620/eng@2025-03-27 2

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13. 14. c) Humanity d) Minimum intervention e) Equality f) Proportionality g) Sufficiency h) Cost effectiveness i) Imprisonment as last resort Clause 1.2 of the Sentencing Guidelines 2023 mirrors the above principles thus provides that a court should consider the following principles during sentencing:i. Proportionality: The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender. ii. Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for same offences committed by offenders in similar circumstances. iii. Accountability and Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines. iv. Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process. v. Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole. The objectives of sentencing are outlined under Clause 1.3 of the aforesaid Guidelines as:I. Retribution: To punish the offender for their criminal conduct in a just manner. ii. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. iii. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person. iv. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs. v. Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts. vi. Denunciation: To clearly communicate the community’s condemnation of the criminal conduct. vii. Reconciliation: To mend the relationship between the offender, the victim and the community. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14620/eng@2025-03-27 3

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viii. Reintegration: To facilitate the re-entry of the offender into the society 15. I have considered the mitigating factors viz a viz the gruesome manner in which the accused literally butchered the deceased who was an only son who lost his life for no cause at the hands of the accused during his youthful age and while taking into account the fact that the accused attempted to mitigate the assault upon the deceased by rushing him to hospital and I hereby sentence the accused to 30 years imprisonment term. I have duly factored in any pretrial term served by the accused pursuant to the provisions of Section 333(2) of the Criminal Procedure Code. 16. It is hereby so ordered. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 27TH DAY OF MARCH, 2025. .............................................. M. S. SHARIFF JUDGE In the presence of : Accused person Ms. Muema for the Prosecution Mr. Emukhule for the Accused Person Diana & David – Court Assistants, Bungoma and Kisumu, respectively https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14620/eng@2025-03-27 4

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