Abisai Abwonza Chogo v Republic & 1 other

5. On its part, the Respondent submitted that the Applicant was convicted of robbery with violence which was a serious ofience and sentenced to death which was later reduced to life imprisonment by the Court of Appeal (sic). It stated that in as much as the Probation Office had recommended a noncustodial probationary sentence, this court should mete out a sentence that was commensurate with the ofience that was committed. 6. According to the Pre-sentence Report of Kelvin Buluma Adeti, Probation Officer, Vihiga dated 15th December 2025 and filed on 9th January 2026, the Applicant was thirty-three (33) years and had spent ten (10) years in prison. He attended Humulalu and Angayu Primary Schools but dropped out in Standard Three (3) in 2002 due to difficulty in grasping the academic content. He, thereafter, engaged in casual work in the village. He later moved to Eldoret where he worked as a security guard. His family lost his contacts. He eventually returned home and moved to Vihiga where he was arrested for the ofience herein. 7. He was not married and did not have any dependents. He had a history of alcoholism and associated with peers who abused drugs. He pleaded with the court to grant him a second chance to begin a new life, expressing remorse and a desire to reform. 8. His family expressed deep emotional relief upon learning that the Applicant was being considered for re-sentencing, viewing it as an answered prayer. They pleaded with the court to consider the period he had already served in custody and to exercise leniency noting that he had learned valuable life lessons, he was remorseful and that he had transformed into a responsible individual. They further expressed willingness to support his reintegration should he be granted an early release. 9. The local administration and the community were generally supportive of the proposed re-sentencing. They pointed out that the Applicant associated with young people who were involved in crime which may have infiuenced him to engage in crime. They expressed confidence that with appropriate guidance and supervision, he could be integrated as a responsible and productive member of the society. 10. The prison officers provided a positive report regarding his conduct and overall behaviour during his time in custody. The Probation Office recommended for his re-sentencing. Efiorts to trace the victim were unsuccessful. 11. 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. 12. 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 ofienders from committing such an ofience. The sentence also had to be one that was hinged on retributive justice for the secondary victims. 13. If the court did not take into account the three (3) objectives of deterrence, retribution and denunciation of his ofience at the time of sentencing him, chances of the Applicant 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. 14. It was clear from the facts of the case that on the material day of 24th November 2015 at Chavakali Location within Vihiga County, the Applicant robbed one Isaac Nyapola of Kshs 12,060/=, one phone make Oling valued at Kshs 2100/= and one camera, make Kodak, valued at Kshs 16,000/= and immediately before such robbery he threatened to shoot the said Isaac Nyapola with a pistol. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/58/eng@2026-01-15 2

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15. As can be seen hereinabove, one of the objectives of sentencing and/or incarceration was majorly to rehabilitate ofienders. 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. 16. Having considered the facts of this case, the Applicant’s mitigation, the Prosecution’s response thereto, the Pre-Sentence Report, the Recommendation Letter by Shadrack O. Opanga (IP) dated 3rd May 2021, the Officer in-charge Kisumu Maximum Prison, and the Applicant’s Certificates of completion on various rehabilitation programs, this court came to the firm conclusion that a reduction of his death sentence to a sentence of thirty (30) years imprisonment would be reasonable in the circumstances of this case. A non-custodial sentence for a person who had threatened to shoot his victim with a gun after the incident was untenable. 17. 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). 18. 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). 19. 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:… Time already spent in prison by the convict…” 20. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR. 21. A perusal of the Charge Sheet herein indicated that the Applicant was arrested on 3rd February 2016. Although he was granted bond, he did not seem to have posted the same. He was sentenced on 23rd November 2016. It was, therefore, this court’s view that that was a period that ought to be taken into account while computing his sentence. Disposition 22. 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 which was later commuted by Executive Order by the President of Kenya be and is hereby set aside and substituted with a sentence of thirty (30) years imprisonment which is to run from the date of the sentence of the lower court. 23. For the avoidance of doubt, the period that he spent in custody between 3rd February 2016 and 22nd November 2016 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). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/58/eng@2026-01-15 3

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24. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 15TH DAY OF JANUARY 2026 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/58/eng@2026-01-15 4

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