Republic v Samuel Odweyo & 1 other

is stable save for the injuries inflicted by the villagers during his arrest; that the accused has no history of drug and substance abuse; that the accused farm crops used to be frequently stolen from his farm and that he had not managed to catch any of the thieves; that the accused laid a trap and that soon afterwards the deceased emerged and that he attacked him with a club on the left side of the ribs killing him instantly; that the accused does not exhibit any remorse and still portrays the death of the deceased as an incident which happened while he was defending himself from mob justice; that during the interview with the probation officer he feigned innocence over the death of the victim and was not committal over reconciliation or even compensation as he appeared not to care; that the family of the accused relocated to Kisumu after their house and property were destroyed and burnt down by the irate mob; that the deceased was aged 28 years and the first born in a family of six; that the deceased was not married at the time of the incident but had one son out of wedlock currently aged four years; that deceased’s mother states that the accused should be accorded custodial rehabilitation to enable him learn to value human life in future; that the deceased was her family’s helper as he supplemented the family income and that she is currently overwhelmed in supporting the victim’s siblings as she is a casual labourer; that the death of deceased left her traumatized and that she had to relocate from the locality to avoid more trauma for herself and her children; that the community and local administration recommends a non-custodial sentence but they are not sure about his safety and that they are convinced that the accused remains in custody so as to appease the community for the sake of justice; that the probation officer recommends for a custodial sentence. 6. I have given due consideration to the mitigation submissions of learned counsels and the presentence report. Under Section 205 of the Penal Code, the maximum sentence for manslaughter is life imprisonment. However, the maximum sentence is usually reserved for the worst form of offenders. Looking at the circumstances of the case, I am of the view that the accused does not merit a sentence of life imprisonment. It is also noted that homicide is unlawful unless authorized by law. The circumstances leading to the death of the deceased are tragic. The deceased was struck with a single blow of a huge club by the accused which smashed his ribs and died instantly. The deceased therefore did not have a chance to survive from such a blow. The pathologist, Dr. Eric Okong’o (PW5) noted that the stomach was full of blood measuring about 700ml that there were tears on the vessels. He formed the opinion that the cause of death was excessive hemorrhage secondary to spleen injury. The accused person ought to have used other avenues of redress over the alleged theft of his farm produce and that had he done so, the deceased would be alive today. The deceased did not deserve to die in the manner that he did. Even if the accused still maintains that he was acting in self defence, the evidence as well as the information gathered during the pre-sentence investigations leaves no doubt that indeed the accused ambushed the deceased unawares and bludgeoned him to death. The deceased therefore died a very painful death. 7. As regards the sentence to be imposed, the Court of Appeal in the case of Charo Ngumbao Gugudu v. R [2011] eKLR held as follows: “ Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani v. R [1990] KLR” 8. According to the Judiciary Sentencing Policy Guidelines (2023), sentencing of offenders should take into account the following objectives: a) Retribution - To punish the offender for their criminal conduct in a just manner. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/403/eng@2026-01-23 2

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b) 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. c) Rehabilitation - To enable the offender to reform from his/her criminal disposition and become a law-abiding person. d) 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. e) Community protection - To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts. f) Denunciation - To clearly communicate the community’s condemnation of the criminal conduct. g) Reconciliation - To mend the relationship between the offender, the victim and the community. h) Reintegration - To facilitate the re-entry of the offender into the society. 8. Looking at the circumstances of the offence as well as the pre-sentence reports and the mitigation of the accused herein, the circumstances leading to the death of the deceased are tragic. The deceased was struck with a single blow of a huge club by the accused which smashed his ribs and died instantly. The deceased therefore did not have a chance to survive from such a blow. The pathologist, Dr. Eric Okong’o (PW5) noted that the stomach was full of blood measuring about 700ml that there were tears on the vessels. He formed the opinion that the cause of death was excessive hemorrhage secondary to spleen injury. The accused person ought to have used other avenues of redress over the alleged theft of his farm produce and that had he done so, the deceased would be alive today. The deceased did not deserve to die in the manner that he did. Even if the accused still maintains that he was acting in self defence, the evidence as well as the information gathered during the pre-sentence investigations leaves no doubt that indeed the accused ambushed the deceased unawares and bludgeoned him to death. A precious life was lost thanks to the accused’s ungovernable anger. The deceased therefore died a very painful death. 9. It is noted that the accused has been in custody since 25th July 2023. The presentence report is not favourable for a non-custodial sentence. That the villagers had retaliated and demolished his house and damaged his properties forcing the accused family to relocate to Kisumu and that as at the moment, the villagers are still irate and therefore the local administration have indicated that they cannot guarantee the safety of the accused if he is released back to the village. The pre-sentence report has also confirmed that the accused is still not remorseful for what he had done and therefore the recommendation for custodial sentence is appropriate in the circumstances. I find that custodial rehabilitation is warranted so as to enable the accused undergo comprehensive rehabilitation and for his anger related issues to be addressed before being released back to the society. 10. In the result, i order the accused herein Samuel Odweyo to serve a sentence of twenty-five (25) years imprisonment which shall commence from the date of arrest namely 25th July 2023. Orders accordingly. DATED AND DELIVERED AT SIAYA THIS 23RD DAY OF JANUARY 2026. D. KEMEI https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/403/eng@2026-01-23 3

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JUDGE In the presence of: Samuel Odweyo……………..Accused. M/s Akinyi……………………for Accused. Soita……...…..………….for Prosecution. Maureen/Kimaiyo…………Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/403/eng@2026-01-23 4

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