Republic v Otuke alias Zephania & another (Criminal Case E021 of 2022) [2026] KEHC 6653 (KLR) (22 April 2026) (Sentence) Neutral citation: [2026] KEHC 6653 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL CASE E021 OF 2022 TW CHERERE, J APRIL 22, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND NELSON BOSIRE OTUKE ALIAS ZEPHANIA ................................. 1ST ACCUSED JOHN JONTE OTUKE .......................................................................... 2ND ACCUSED SENTENCE 1. Accused 1 and 3 stand convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code following the judgment of this Court delivered on 19th March 2026. Upon conviction, the Court directed that pre-sentence inquiry reports and a victim impact statement be prepared to assist the Court in determining an appropriate sentence. 2. In determining sentence, this Court is guided by the Constitution, statute and applicable policy. Article 26(1) of the Constitution guarantees that every person has the right to life, while Article 26(3) provides that a person shall not be deprived of life intentionally except to the extent authorised by the Constitution or other written law. The unlawful killing of the deceased in the present case constitutes a direct violation of that constitutional right. Further, Article 28 secures the inherent dignity of every person, Article 27 guarantees equality before the law, and Article 50 underscores the right to a fair trial, including fairness in sentencing. These provisions require this Court to impose a sentence that vindicates the sanctity of life while remaining proportionate, fair and individualized. 3. The Victim Impact Statement Report dated 20th April 2026 discloses that the deceased was a respected businessman and community member whose death caused profound emotional distress, social disruption and lasting trauma to his family. The report further reveals that the offence was committed by close relatives, thereby aggravating the injury through a deep sense of betrayal and loss of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6653/eng@2026-04-22 1
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familial trust. The family has expressed a legitimate expectation that the Court will impose a sentence commensurate with the gravity of the offence. 4. The Pre-Sentence Inquiry Reports dated 20th April 2026 set out the personal circumstances of each accused person. The 1st accused is indicated to be a first offender with no previous criminal record. The Court has taken into account those personal circumstances together with the mitigation offered that Accused are first offenders, are remorseful and have young families. However, sentencing is an individualized exercise which must reflect not only the background of the offenders but also their respective roles in the commission of the offence. 5. From the findings in the judgment, it is evident that the culpability of the accused persons is not equal, and the Court must expressly say so. The 1st accused was the principal actor in the fatal chain of events. He not only participated in the initial assault but deliberately disengaged, armed himself with a panga, concealed it, and returned to pursue the deceased who was fleeing. His conduct was therefore not spontaneous but calculated, and it is this escalation that directly resulted in the fatal injury. 6. The 3rd accused, although present and involved in the assault, did not exhibit the same degree of premeditation, nor was he shown to have inflicted the fatal injury. His participation, while criminal, remained at a lower level of culpability when compared to that of the 1st accused. 7. The Court is bound by the principle of proportionality, now firmly anchored both in the Sentencing Policy Guidelines, 2023 and in constitutional values, to ensure that punishment reflects not only the offence but also the offender’s individual role and moral blameworthiness. Where co-offenders play unequal roles, equal punishment would itself be unjust. It therefore follows, as a matter of principle and law, that the offender who inflicted or substantially contributed to the fatal injury must bear a higher sentence. 8. The Court has also considered the aggravating circumstances, namely the premeditated nature of the attack, the pursuit of a fleeing victim hy Accused 1, the use of a lethal weapon, and the resultant fatal injuries. These factors elevate the seriousness of the offence. While the mitigation and the absence of previous convictions are relevant, they do not outweigh the gravity of the conduct. 9. In the totality of the circumstances, and bearing in mind the constitutional imperative to uphold and protect the right to life, the dignity of the victim , and the principles of fair and proportionate sentencing, the Court finds that a substantial custodial sentence is warranted. The Court, however, declines to impose the death penalty and instead exercises its discretion in favour of a term of imprisonment. 10. Accordingly, the 1st accused, Nelson Bosire Otuke alias Zephania, being the principal perpetrator of the fatal assault and bearing greater culpability, is hereby sentenced to thirty (30) years imprisonment, while the 3rd accused, John Jonte Otuke, whose participation was of a lesser degree, is hereby sentenced to ten (10) years imprisonment. 11. The sentences shall run from 07th October 2022, being the date of arrest, in compliance with section 333(2) of the Criminal Procedure Code. 12. Right of appeal explained. DELIVERED AT NYAMIRA THIS 22ND DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6653/eng@2026-04-22 2
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Court Assistant - Anita 1st Accused - Present 3rd Accused - Present For Accused Persons - Mr. Marita for Akanga Matende & Co. Advocates For the DPP - Mr. Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6653/eng@2026-04-22 3
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