Republic v Tum (Criminal Case E023 of 2025) [2026] KEHC 10374 (KLR) (13 July 2026) (Sentence) Neutral citation: [2026] KEHC 10374 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT ELDORET CRIMINAL CASE E023 OF 2025 AK NDUNG'U, J JULY 13, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND JOSEPH KIMUTAI TUM ............................................................................. ACCUSED SENTENCE 1. Joseph Kimutai Tum(hereinafter the Accused) was initially charged with murder contrary to Sections 203 and 204 of the Penal Code. The particulars were that on the 30th November 2025 at Muiyengwet village, Kabao location, Moiben sub county, murdered Miriam Jepngetich. 2. Following a successful plea bargain, the charge was reduced to one one Manslaughter contrary to section 202 as read with section 205 of the penal code to which the Accused pleaded guilty. 3. The matter is before court for sentencing. 4. The court has a wide discretion on the question of sentence. However, the said discretion cannot be used by the Court of law in a fanciful and whimsical manner. Every case has to be decided on the consideration of its circumstances including the gravity of offence, victim impact, the need to deter crime and the rehabilitation of an offender among others. The discretion does not open a carte blanche for a whimsical decision on the appropriate sentence. In The Nature of the Judicial Process – Yale University Press 1921 Ed page 144 Benjamin N. Cardozo puts it in the following words; “ The judge even where he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to drawn his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10374/eng@2026-07-13 1
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informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life’. . .” 5. The question then that I have to grapple with at this stage is what would constitute an adequate, appropriate and just sentence in the circumstances of this case. In the case of State Of Madhya Pradesh v Mehtaab Cr. Appeal No. 290 OF 2015, the Supreme Court of India held: “ It is the duty of the court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstances may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and society. It is also the duty of the court to duly consider the aspect of rehabilitating the victim.” 6. 7. The objectives of sentencing as stated in paragraph 4.1 of the Judiciary Sentencing Policy Guidelines can be summarized as follows: a. To prevent the occurrence of crime; b. To punish the transgressor and the criminal; c. To rehabilitate the transgressor and the criminal; d. To compensate the victim; e. To deter the offender from committing any criminal acts in the future as well as other people from committing similar offences and f. To protect the community condemnation of the convict. . The importance of sentence was emphasized by the Supreme Court of India in the case of Antony Pareira V State Of Maharashtra(2 AIR 2012 SC 3802) where it stated stated: “ 70. Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles; twin objective of the sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances." 8. I have carefully considered the nature of the offence and the manner of its execution inclusive of the circumstances leading to the death of the deceased. 9. I have in addition considered the mitigation put forth by the accused through his advocate and the State’s submission on sentence. I have taken note of Accused’s antecedents whereby he has no previous criminal records. I note the loss of an innocent life thus the deprivation of the single- most highest ranking human right. 10. In mitigation, counsel for the Accused stated that the Accused is a man of good character and a sole bread winner of 6 children 3 of whom are minors. That he is remorseful and is ashamed of the act. He submitted himself to the police when the offence occurred. It is sought that he be rehabilitated to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10374/eng@2026-07-13 2
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society to take care of the minors. A non custodial sentence is sought. In the plea bargain agreement the defence proposed a sentence of imprisonment for a term not exceeding 8 years while the state proposed a sentence of not more than 10 years. 11. The pre-sentence inquiry report recommends a non-custodial sentence 12. Having considered all the facts as presented, and noting the evidence of reconciliation reached including payment to the victim’s family, the plea of guilt, the welfare of the children in the family and the level of forgiveness demonstrated, and, however, noting the seriousness of the offence and alive to my duty to afford justice to the Accused and the victim, am satisfied that a sentence of 5 years imprisonment shall suffice. 13. The Accused is to serve 5 years imprisonment to run from the date plea was taken. DATED SIGNED AND DELIVERED IN OPEN COURT THIS 13 DAY OF JULY 2026 A.K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10374/eng@2026-07-13 3
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