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him to become unconscious. The accused left the scene and the riders took the deceased to the hospital where he died a few days later. 4. According to the Prosecution, the evidence availed at the hearing proved the offence beyond reasonable doubt. 5. After the accused’s offer to plead guilty, and the plea of guilt was entered, the stage was set for mitigation. To this end, the Court called for a Probation Officer’s Pre-Sentence Report. Mitigation 6. In mitigation, the accused person stated that he is a 39-year-old man with 3 children aged 19, 8 and 3 years respectively. That he did not enter into the fight with the deceased deliberately. After the incident, his house was burned down and he lost everything including his certificates. He is remorseful for what happened. He stated that the has been in remand for a cumulative period of 7 years during which period he has undertaken constructive courses including anger management. He stated that at the time of the incident, he also suffered an injury on his knee and he still needs medical attention for the same. Response to Mitigation 7. In response to mitigation, the prosecution stated that the deceased died at the young age of 28 years. That he lost an opportunity to live his full life. The prosecution urged the court to consider that fact. On sentencing, the prosecution sought that the Court should rely on the Probation Officer’s report. The Probation Offcer’s Pre-Sentence Report (POR) 8. According to the Probation Officer’s report dated 13th October 2025, the accused’s family has taken turns to visit him since his incarceration. The family has also taken up the responsibility of raising the children of the accused. Given this support, the accused’s family are ready to approach the deceased’s family to make restitution for the death of their kin. The 2 families are yet to agree on the compensation or asset to be exchanged as restitution. 9. The report disclosed that the accused killed the deceased who had first hit him with a stick after the accused’s girlfriend insulted the bodaboda riders. The accused used the same piece of wood to hit the deceased on the head and that is how he died. Given these circumstances, he is remorseful and regrets the offence as he has never before been liable for a criminal offence. 10. The deceased’s family was left without a breadwinner and his children had to drop out of school. They are yet to come to terms with the death of their kin. According to them, the deceased died as he fought with the accused and that the fatal injuries were not infiicted intentionally. The deceased’s family are in talks with the accused’s family to make restitution in the form of support for the deceased’s children who are orphaned. The report indicates that the 2 families relate well and the deceased’s family members have no problem with the accused being given a non-custodial sentence. They emphasized that incarcerating the accused will not benefit anyone because the accused and the deceased come from the same village. In their view, restitution is the best option. The probation officer recommended community service. Analysis and Determination 11. Following the guilty plea entered, the accused was convicted on his own guilty plea. The punishment for the offence of murder is death. The accused person pleaded for leniency as he has already spent a total of 7 years in remand. The probation officer’s report recommends that the accused be given a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/539/eng@2026-01-28 2

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community service order. The family of the deceased is also not keen to see the accused face a custodial sentence and they prefer restitution for the death of their kin. 12. In the case of Republic v Sang [2025] KEHC 17552 (KLR) the court sentenced the accused person to 3 years’ probation under similar circumstances. In Republic v Muthike & another [2025] KEHC 18100 (KLR), the court sentenced the accused to 9 years imprisonment under similar circumstances. 13. In this case, consideration is taken into account of the fact that the family of the accused and deceased have indicated their keenness to pursue restitution and not necessarily a custodial sentence. However, the nature and particulars of restitution have not been iron out and agreed. Disposition 14. In my view, the accused may be sentenced to imprisonment for the time spent in custody and an additional 3 years of community service under supervision of the County Probation Officer. 15. In light of all the foregoing and taking into account the Judiciary Sentencing Policy 2023 and the mitigating factors, and also the time spent by the accused in pre-sentence custody, I think the appropriate sentence is as follows: 16. a. The accused is sentenced to 12 years imprisonment which period shall be subject to remission. b. For the balance of his sentence term after taking account of remission, the accused shall: i. Serve the last three (3) years of his sentence as a non-custodial sentence performing community service under supervision of the County Probation Officer or an officer delegated by him. ii. The County Probation Officer shall prepare and facilitate a programme of community service and during the period of community service, particulars of restitution shall also be agreed. iii. Should the offender fail to comply with (i) or (ii) above, the matter shall be reported to Court and the offender may be required to serve the balance of the sentence in prison. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 28TH DAY OF JANUARY, 2026. R. MWONGO JUDGE Delivered in the presence of: 1. Accused Present in Open Court 2. Mwaniki holding brief for Mamba for DPP 3. Mugo for Accused 4. Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/539/eng@2026-01-28 3

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