Republic v Mwania (Criminal Case E014 of 2023) [2026] KEHC 11566 (KLR) (28 July 2026) (Sentence) Neutral citation: [2026] KEHC 11566 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CRIMINAL CASE E014 OF 2023 JN ONYIEGO, J JULY 28, 2026 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND EUTICUS MATATA MWANIA ................................................................... ACCUSED SENTENCE 1. The Accused is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. Particulars are that on the night of 14th day of August 2023 at Kaliani village, Kithungo Location, Mbooni West Sub-County within Makueni County he murdered James Mwania Kitonga. 2. Having pleaded not guilty to the charge, the case was fixed for hearing. However, parties engaged in plea bargaining agreement in which he pleaded guilty to a lesser charge of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code. The court then ordered for Pre-Sentence Report which recommended for a probation of a period of 3 years. 3. According to the Pre-Sentence Report filed in court on 23th July, 2026, accused is suitable for noncustodial sentence. The report described the accused as a youthful man at the age of 32 years; he divorced but remained with the children. That he is remorseful and regrets the incident; he has been in custody since 2023 hence reformed during his stay in custody; he is a first offender and pleads for leniency preferring non-custodial sentence to allow him to resume his parental responsibilities. 4. The report further states that, the victim’s family members were saddened by the incident but have since reconciled with the offender. They have forgiven him and have no grudge with him hence prays for non-custodial sentence for the offender. That the community is not hostile to him and he is not a threat to them either. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11566/eng@2026-07-28 1
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5. In mitigation, Counsel for the Accused adopted the Pre-Sentence Report which is favourable to the Accused and urged the court to consider that the Accused is a first offender, a father of two young children, sole breadwinner, family members have reconciled and that he is remorseful. 6. It is trite that sentencing is at the discretion of the trial court. See Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 where the Court of Appeal stated thus; “ sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (See also Sayeka –vs- R. (1989 KLR 306)” 7. Similar position was stated by the court of appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated that: “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” 8. It is however worth noting that in exercise of its discretion, a court is duty bound to take into consideration certain guiding principles inter alia; the aggravating nature of the offence committed; the mitigating factors; pre-sentence report; previous criminal record of the accused; and victim impact assessment report. See Judiciary sentencing policy guidelines clause 4.5 of 2023. 9. This court is pretty aware of the objectives of sentencing which are also captured in the Judiciary Sentencing Policy Guidelines Clause 1.3.1 of 2023 as; retribution, deterrence, rehabilitation, restorative justice, community protection, denunciation, reconciliation and reintegration. 10. I have considered the circumstances under which the offence was committed, favourable Pre-Sentence Report and the mitigation on record. The factors that led to Accused committing the offence was lack of self-control, lack of alternative dispute resolution mechanism and self-gratification on the part of the Accused. He killed his father after a quarrel over land. 11. However, life was lost in circumstances which would have been resolved amicably without resulting to violence. It is unfortunate that accused killed his father which is a curse. I have taken into account the fact that the victim’s family has reconciled. I have also considered the fact that he pleaded guilty thus saving court’s time. Having taken into account the over three years spent in remand custody, accused is sentenced to three years imprisonment. For avoidance of doubt, the period spent in remand custody since his arrest to date has been taken care of and removed. ROA 14 days. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 28TH DAY OF JULY, 2026 ……………………….. J. N. ONYIEGO https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11566/eng@2026-07-28 2
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JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11566/eng@2026-07-28 3
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