Republic v Tobias Odhiambo Awuor & 1 other

a). Tobia Odhiambo Awuor person was employed by one Francis Maloba at a business located at Komarock phase IV. He was working as a night guard and during the day he was working for the same employer at his scrap metal shop at Kariobangi South light industries as a loader. b). The deceased and accused person were neighbors He was working at a place adjacent to where the accused person was working. c). On 18th May 2024 accused received his salary of Kshs 3,000. He went home and later left to a club where he started taking alcohol. That he left the drinking den and went home at around 2200hrs. d). That he heard his neighbor Mwangi (deceased) crying and went to check. That deceased asked him for a weapon and a scuffle ensured. e). On 19 May 2024, one Francis Mwenda was at Umama ground which is along Kangundo road doing his morning exercises. At around 0715hrs accused person who was eating Githeri from a polythene bag went and started cheering him on. f). When Francis Mwenda was done with exercises, he engaged Accused Person in a conversation. He observed that accused's hands were stained with blood and his brown trouser had blood on the right leg. Accused person told him he had hacked someone and requested for prayers when Francis goes to church. g). The accused informed Francis Mwenda the deceased had reported him to his employer that he used to steal undisclosed materials from the employer's yard. That he had attacked the deceased by throwing him back and forth hitting him against the wall. h). Francis Mwenda called police control room and reported the matter. Police officers from Kayole police went to Umama grounds and arrested the accused who directed them to where the deceased was Police found him alive but unconscious with blood all over his body. i). Police officers rushed John Warui (Deceased) to mama lucy hospital where he succumbed while receiving treatment. The body was taken to the mortuary awaiting post mortem. j). Accused was escorted to Kayole police station and booked vide OB NO. 25/19/05/2024. k). On 22nd May 2024, Anastacia Gladys Mumbi Mwangi Mother to deceased and James Njogu Mwangi father to deceased identified the body for post mortem at mama lucy kibaki hospital whereby Dr. CK Muturi formed an opinion that the cause of death was Head and chest injuries due to blunt force trauma consistent with Assault. l). Blood stained trouser and blood -stained red checked Maasai shuka recovered from accused was forwarded to government chemist for analysis. m). On 21st May, 2024, the accused was escorted to Makadara Law courts vide Miscellaneous criminal Application number E670/2024 where investigating officer sought custodial orders to complete investigations. n). The accused was taken to Kenyatta National Hospital for psychiatric assessment. A report dated 17th July, 2024 certified his mental status as fit to plead. He was consequently arraigned in Milimani High Court on 14th June, 2024 charged with 1 count murder contrary to section 203 as read with section 204 of the Penal Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11638/eng@2026-04-28 2

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o). the accused person offered to plead guilty to the offence of manslaughter and the offer was acceded to by the state. The charge of murder was therefore substituted with that of Manslaughter. 6. The prosecution informed the court that the accused was a first offender as he had no previous records. 7. The accused person in mitigation pleaded for leniency asking the court to take into account that by pleading guilty he had taken responsibility for the offense and that he was remorseful. 8. He further urged the court to consider that he had saved court’s valuable time by waiving his right to go through a full trial thus he should be credited for that. 9. The accused further told the court that the assault happened when he together with the deceased were drunk thus, he killed him purely out of mistake. 10. According to the accused when the deceased asked for a weapon from him, he indicated that he had been assaulted elsewhere therefore he needed the weapon to go and revenge. 11. The accused further stated that he had reformed and the court should have mercy on him in sentencing. 12. in conclusion the accused told the court that he had 3 children who depended on him and that he has a metal implant which makes his life difficult in prison and that he occasionally suffers pain. 13. The accused was also said to have a supportive family which was willing to receive him back into society. 14. The defense attorney told the court that the accused had been in custody since 19th May 2024 and had suffered enough thus the court should consider giving him a non-custodial sentence. 15. The defense counsel further urged the court that should the court be minded to sentence the accused to a jail term, then the sentence should not exceed 3 years. 16. The prosecution proposed a jail term of between 7 to 10 years. 17. The court called for a presentence report which was prepared and filed in court on 23rd February 2026. The probation officer recommended that the accused person be considered for a non-custodial sentence in the form of a probation order. 18. The court notes that the facts only reveal an attack on the deceased. The is no indication that the deceased assaulted the accused and it would appear the accused person went out to and discipline the deceased whom he accused of reporting him to the employer, 19. The accused person took the law into his own hands and decided to punish the deceased leading to the fatal injuries being sustained. 20. The offence of Manslaughter attracts a life sentence as per the provisions of Section 205 of the Penal code. However, in sentencing the High Court retains the discretion to impose a suitable sentence depending on the aggravating nature of the circumstances surrounding the death of the deceased. 21. The more gruesome the circumstances surrounding the death of the deceased the higher the penalty. The court will also take into account the fact that an accused person has pleaded guilty to the offence saving precious judicial time. 22. The accused in this matter took the life of the deceased out of bitterness for what he considered as a move by the deceased to soil his relationship with his employer. The court considers the action of the accused as amounting to taking the law into his own hands yet he could have resolved the issue in a less acrimonious way without putting the deceased person to death. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11638/eng@2026-04-28 3

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23. The court has taken into account the mitigating circumstances laid out by the defense counsel. However, the court considers that this is not a fit case for a non -custodial sentence. The deterrence aspect of sentencing will not be achieved if this court decides to impose a non-custodial sentence. 24. The defense proposed a term of 3 years imprisonment while the prosecution on the other hand urged the court to consider a sentence ranging between 7-10 years. This court retains the discretion to decide on the ultimate sentence to impose. 25. In Republic v Sang & another (Criminal Case E059 of 2021) [2023] KEHC 873 (KLR) (10 February 2023) (Sentence) the court held;This court has taken into account the mitigating circumstances in this case. The two accused persons took the law into their hands and killed their uncle who was cohabiting with their mother. There were other ways of resolving the issue such as involving local administration instead of taking away the life of their uncle. The offence of manslaughter is a serious one that calls for a life sentence. Taking into account the mitigating circumstances of this case, the two accused persons are sentenced to ten (10) years imprisonment each. 26. The court retains the discretion to impose a suitable sentence which I hereby do. Taking into account that the accused has been in custody since 19th May 2024, the accused is hereby sentenced to serve a prison term of 8 years to be computed from 19th May 2024. 27. The accused has a right of appeal against the severity and legality of sentence within 14 days from the date hereof. 28. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF APRIL, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assista Ms Njoroge/Ms Dela for the State Wanyonyi for the Accused Accused : Present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11638/eng@2026-04-28 4

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