State v Ogutu (Criminal Case 26 of 2022) [2025] KEHC 19741 (KLR) (24 June 2025) (Sentence) Neutral citation: [2025] KEHC 19741 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISII CRIMINAL CASE 26 OF 2022 TA ODERA, J JUNE 24, 2025 BETWEEN STATE ................................................................................................... PROSECUTION AND FRED NYAKUNDI OGUTU ....................................................................... ACCUSED SENTENCE 1. The offender herein was initially charged with murder contrary to Section 203 as read with 204 of the Penal Code. He later entered into a plea bargain agreement with the State and the charges were reduced to manslaughter contrary to Section 202 as read with 205 of the Penal Code. She pleaded guilty to manslaughter and he was accordingly convicted. 2. This case is now coming up for sentencing. This court called for a pre-sentence report from the probation and it has emerged from the same that the convict was an employee of the deceased but later the relationship advanced into a romantic relationship. The convict has another active criminal record that have been running concurrently with the matter at hand before Narok Law Courts in which he was convicted for the offence of robbery with violence and was set to be sentenced on 19.05.2025. 3. The report indicates the offender is a youthful man aged 28 years with a five year old son from his previous relationship and that the community is for his incarceration due to his criminal history. 4. Defence Counsel submitted that he is a first offender and is remorseful hence the plea bargain and prayed for a non- custodial sentence. Prosecution also supported the contention that it was submitted that the offender entered into a plea bargain agreement and save judicial time and so he prayed for leniency. 5. The Supreme Court in the Muruatetu case set down the following factors to be considered in sentencing in murder trials; a) Age of the offender. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19741/eng@2025-06-24 1
page 1 of 2
b) Being a first offender. c) Whether the offender pleaded guilty. d) Character and record of the offender. e) Commission of the offence in response to gender-based violence. f) Remorsefulness of the offender. g) The possibility of reform and social re-adaptation of the offender. h) Any other factor that the court considers relevant. 6. I have considered the age of the offender nature of the offence, its circumstances, the pre-sentence report, mitigation, the remand period of about 3 years, the fact that he is remorseful and the sentiments of community. I agree with defence counsel that the offender deserves leniency for entering into a plea bargain agreement and saved the precious judicial time of the court and expedited the determination of the case. It is clear that the offender cut short the life of his employee. The pre-sentence report recommends a custodial sentence for the offender as he is not fit for a non-custodial sentence due to his past criminal tendencies and the views of community that he is in need of a proper rehabilitation to learn how to obey the law and beware of negative consequences of drug/substance abuse and keeping bad company. The victims could not be traced hence their views to be taken. I agree with the probation report that he is not suitable for a non custodial sentence in the circumstances 7. The offender has saved the judicial time of the court and the resources. He is entitled to some concession on the sentence. 8. I proceed to sentence the offender to 10 years imprisonment same to run from 9.5.22 when he was arraigned for plea 14 days Right of appeal. DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF: T.A ODERA JUDGE 23. 6.25 The convict Mr. Kimaiyo advocate Mr. Koima for prosecution and CA Kipchirchir Koima: I seek that the exhibits be released to the family of deceased. i.e 2 mobile phones Huwei, make, 32-inch tv set, 6kg gas cylinder. The same can be released to the brother of deceased Innocent Obwori. Investigating officer is in court. Investigating officer PC Kamau, he is the brother to deceased. Order: The said exhibits be released to Innocent Obwori a brother to deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19741/eng@2025-06-24 2
page 2 of 2