Republic v Oduor alias Nyanya & another (Criminal Case E002 of 2025) [2026] KEHC 2306 (KLR) (27 February 2026) (Ruling) Neutral citation: [2026] KEHC 2306 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUSIA CRIMINAL CASE E002 OF 2025 WM MUSYOKA, J FEBRUARY 27, 2026 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND MARTIN ODUOR ALIAS NYANYA ................................................... 1ST ACCUSED STEPHEN OUMA .................................................................................. 2ND ACCUSED RULING 1. The accused persons herein were convicted, on 2nd February 2025, of the murder of William Owino, on 14th November 2024. They are now convicts. I am called upon to sentence them for that offence. I will consider the penalties available in law for that offence, the circumstances of the commission of the offence, the feelings of the family of the victim and the antecedents of the convicts. 2. The penalty, prescribed by the law, for murder, is mandatory death, according to section 204 of the Penal Code, Cap 63, Laws of Kenya. However, Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ) made mandatory death, as the punishment for murder, unconstitutional. That meant that for murder the penalties available should be those others provided in law, including imprisonment, which is what ordinarily obtains for manslaughter. 3. As stated above, the penalty for murder, according to section 204 of the Penal Code, is death; while that for manslaughter is a maximum of life imprisonment, by virtue of section 205 of the Penal Code. Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), has thrown everything into a spin, by erasing the mandatory death sentence. Yet, the Attorney-General has not taken steps to have the Penal Code amended, to align it to the emerging jurisprudence. It would now appear that there is no difference between murder and manslaughter, so far as sentence is concerned. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2306/eng@2026-02-27 1
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4. I called for pre-sentence reports. The probation office has compiled and filed them, both dated 19th February 2026. They are generally favourable. The convicts as reflected as being remorseful, although denying complicity in the killing. They both state they went to the scene where the deceased was being assaulted, but deny taking part. whereas that aligns with what the 1st convict told the court, it differs from what the 2nd convict stated in defence, that he never went to the scene. That would mean the 2nd convict lied to court, on oath. 5. I have noted the circumstances of the commission of the offence, the statements made by the Advocate for the convicts in mitigation, and the pre-sentence reports. I have also noted the antecedents of the convicts, and the sentiments of the family of the victim, and the community. I have taken all these into account, balancing them against the fact that a human being lost his life, in a most senseless way. I note that this was a case of mob justice, in which the 2 convicts participated. In the circumstances, I shall give them each a custodial sentence, being imprisonment, to be served for 10 years. There is a right of appeal, to the Court of Appeal, within 14 days. Orders accordingly. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, THIS 27TH DAY OF FEBRUARY 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Advocates Mr. Onanda, instructed by the Director of Public Prosecutions, for the Republic. Mr. Juma, the Advocate for the convicts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2306/eng@2026-02-27 2
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