Douglas Ambasi Eravuna v Republic & 1 other

was not aware of the consequences of crime at the time of the commission of the offence. He stated that his long incarceration had taught him the consequences of crime. 5. He pointed out that he had been living peacefully with his fellow inmates and prison authorities while engaging himself in various rehabilitation programs such as Diploma in Biblical Studies, Certificate in Biblical Studies in Prisoner’s Journey and the Gospel Faith Messenger Ministry and acquired completion certificates. He believed that the acquired knowledge and skills would enable him reintegrate in the society and live a self-supportive life as a law-abiding citizen. 6. He promised not to indulge in crime again and pleaded with the court to have mercy on him and substitute his death penalty with a lenient sentence in conformity with the decision in the case of George Munyinyi Kihuyu vs Daniel Gichimu Githinji & Another vs Republic (eKLR citation not given) without setting out the holding that he was relying upon. 7. He further stated that during his arrest, he was thirty-one (31) years old and had not laid down a family foundation. He contended that his long incarceration without any prospect of release would ruin most of his life contrary to primary purpose of sentences of imprisonment as prescribed in the United Nation Minimum Standard Rules (Mandela Rules No 4) and the correctional services motto of “kurekebisha kwa haki” as well. 8. He pleaded with the court to be lenient on him as man was to err and that it did not mean that since one had committed a crime, he/she should be judged for a lifetime. He urged the court to consider Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) while reviewing his sentence. 9. In his oral submissions, he stated that he was forty four (44) years having been born on 1st December 1981. He said that being an orphan, he had to fend for himself. He stated that he had never married and had never constructed a house. He pointed out that he had learnt may skills while he was incarcerated and that he was ready to go out to the society to preach the Gospel. He averred that he was arrested on 6th January 2012 and since then, he had never left prison. He prayed that he be given a second chance to live with others in the society. 10. On its part, the Respondent pointed out that the Pre-Sentence Report was negative. It averred that the Applicant was not remorseful as he still denied having committed the offence that he had been charged with. It averred that at the material time, the he was with others and armed with pangas and rungus. It said that he and others tied up the Complainant’s wife and daughter and raped them. It urged this court to mete out to him a sentence that was commensurate with the offence that he committed so that he could be rehabilitated. It prayed that justice not only be done but that the same must be seen to have been done. 11. According to the Pre-sentence Report of Mariam Korir, Probation Officer, Vihiga dated and filed on 14th November 2025, the Applicant was forty-four (44) years old and had spent fourteen (14) years in prison. He attended Kegoye Primary School and completed his primary education successfully. However, due to financial constraints, he did not proceed to secondary education. He began working as a casual labourer within the community, engaging in various manual jobs to earn a living and support himself until his arrest. He was not married and had no children. He was Christian and consumed alcohol. 12. He expressed remorse of his behaviour that led to the commission of the offence herein and expressed a desire to lead a more disciplined, sober and productive life upon release. 13. His family believed that he was wrongly convicted for an offence he did not commit. They pleaded with the court to consider re-sentencing him to grant him an opportunity to return home and rebuild https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19231/eng@2025-12-18 2

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his life. They pledged their support in the event of a reintegration into the community and promised to ensure that he led a responsible and law-abiding life. 14. The victim expressed deep emotional distress as she recounted the events surrounding the offence. She stated that the Applicant’s actions had profound and lasting negative impact on her life and that of her daughter as they both subjected to rape during the incident and the Applicant further threatened them with a panga. She expressed fear and anxiety of possible retaliation or harm should he return to the community. 15. The Local Administration and the community explained that the Applicant was a member of a gang that had been robbing the community. They were concerned that the safety of the victim was not guaranteed if he was to return back home. 16. The prison authorities noted that the Applicant had maintained good behaviour throughout his sentence and had no record of criminal activities while in prison. They added that he had demonstrated a commitment to personal growth and rehabilitation as was evidenced by his successful completion of a Certificate in Theology. 17. As the Local administration and the community had expressed deep apprehension of the Applicant’s return, the Probation Office recommended that the Applicant continues with his initial sentence. 18. According to the recommendation letter dated 19th June 2025, by Fredrick Ouko, the in-charge, Kibos Maximum Security Prison, the Applicant had shown exemplary behaviour while serving his sentence and had acquired completion certificates in various rehabilitative programs. 19. Notably, the principle of sentencing is fairness, justice, proportionality and commitment to public safety. The main objectives of sentencing are retribution, incapacitation, deterrence, rehabilitation and reparation. The Sentencing Policy Guidelines in Kenya have added community protection and denunciation as sentencing objectives. The objectives are not mutually exclusive and can overlap. 20. It was also important that the sentence communicate to the community, condemnation of his criminal act. The sentence would indirectly send a strong signal to deter would be offenders from committing such an offence. The sentence also had to be one that was hinged on retributive justice for the secondary victims. 21. If the court did not take into account the three (3) objectives of deterrence, retribution and denunciation of his offence at the time of sentencing him, chances of the Petitioner being reintegrated in the society would be next to impossible as there were possibilities of being harmed. Justice not only needed to be done but it had to be seen to be done. 22. It was clear from the facts of the case that on the material night of 31st December 2011 and 1st January 2012 at Kegoye Sub-Location in Vihiga County within Western Province, the Applicant, jointly with others, while armed with pangas, rungus and sharp torches robbed of Mebo Gayansi Ambani cash Kshs 300/=, one Sontec Radio, one mobile phone make Nokia, nine (9) packets of unga ngano, ten sticks of lido soap, one dozen of golden battery, a dozen Royco, 5 packets of Unga Ugali, one dozen of Chipsy, 4 kgs of simsim, 2 Kgs of tea leaves, 4 kgs of kunde, 20 pieces of fish, 2 kgs of omena, four sodas, 1.5 box of biscuits, 40kgs of beans, 40kgs of white maize, two (2) blankets, one axe and one satchet of Onga, 2 dozens of tea leaves sachet, one sachet of Oyo and one packet of roll ball all valued at Kshs 23,500/= the property of Mebo Gayansi Ambani and at or immediately before or immediately after the time of such robbery used actual violence to the said Mebo Gayansi Ambani. 23. During the incident, the Applicant jointly with the others raped the wife and daughter of the said Mebo Gayansi Ambani. The Applicant was convicted on Count II and III for the offences of rape https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19231/eng@2025-12-18 3

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contrary to Section 10 of the Sexual Offences Act No 3 of 2006 and the offence of defilement contrary to Section 7 of the Sexual Offences Act respectively. He was sentenced to serve ten (10) years on each Count. However, the sentences on Count II and Count III were held in abeyance as he had been sentenced to death for the offence of robbery with violence. 24. As can be seen hereinabove, one of the objectives of sentencing and/or incarceration was majorly to rehabilitate offenders. This court was persuaded to find and hold that the same had been achieved herein as the Applicant had undertaken life skills that would enable him be re-integrated back to the society. 25. Having considered the facts of this case which had aggravating factors of rape and defilement, the Applicant’s mitigation, the Prosecution’s response thereto, the Pre-Sentence Report and the Recommendation Letter by Fredrick Ouko (SSP), the Officer in-charge Kibos Maximum Security Prison, this court came to the firm conclusion that a reduction of his death sentence to a sentence of thirty five (35) years imprisonment would be reasonable in the circumstances of this case. 26. As the Applicant’s sentence was now determinate, this court was mandated to consider the period that he spent in remand while his trial was on going in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 27. The said Section 333(2) of the Criminal Procedure Code provides that:“ Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis court). 28. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:… (ix) Time already spent in prison by the convict…” 29. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR. 30. A perusal of the Charge Sheet showed that the Applicant was arrested on 10th January 2012. He did not seem to have been released on bond. He was sentenced on 4th October 2013. Disposition 31. Accordingly, the upshot of this court’s decision was that although the Applicant’s conviction remained undisturbed as it was safe, his sentence of death be and is hereby set aside and substituted with a sentence of thirty-five (35) years imprisonment which is to run from the date he was sentenced by the Trial Court. The sentences of ten (10) years on Count II and Count III will run concurrently with the sentence of thirty five (35) years imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19231/eng@2025-12-18 4

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32. For the avoidance of doubt, the period he spent in custody during trial between 10th January 2012 and 3rd October 2013 be and is hereby taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 33. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 18TH DAY OF DECEMBER 2025 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19231/eng@2025-12-18 5

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