REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA CRIMINAL CASE NO. 38 OF 2020 REPUBLIC................................................................................................PROSECUTOR VERSUS ERICK KABAKA SISEI ........................................................................ 1ST ACCUSED NELSON KAHAVERE .................................................. 2ND ACCUSED(DECEASED) DAN ESOLIO SISEI ............................................................................. 3RD ACCUSED KELVIN ASENEKA ............................................................................... 4TH ACCUSED BONFACE STUMA EGOVWA ............................................................. 5TH ACCUSED ALICE MINAYO .................................................................................. 6TH ACCUSED CATHERINE KAGEHA .......................................................................... 7TH ACCUSED TRUPHENA MUHONJA ........................................................................ 8TH ACCUSED SENTENCING 1. The 1st, 3rd and 4th accused persons were jointly charged with the offense of Murder contrary to Section 203 as read with section 204 of the Penal Code for causing the death of Allan Kamwenya Afandi 2. The 1st accused mitigated that he is a first time offender he is married with three children who depend on him for support, expressed remorse, the court has also considered the period the accused has been in custody 3. The 3rd accused mitigated that he is first-time offender comes from close knit family that remains supportive, he has family land in Busia and is planning to relocate upon release 4. The 4th accused mitigated that he is a first time offender with no prior record, lengthy 5-year 8-month pretrial detention, stable family/community ties, low reoffending risk, expressed remorse, and strong community support for reintegration. 5. The court has considered the aggravation tendered by the prosecution that the offence was brutal and violent, involving multiple weapons (metal KK. HCR 38 OF 2020 - RULING 1
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rod, axe, rungu) causing fatal head injuries. The victim was the sole provider for his family, leaving a widow and two young children. The deceased and the accused persons were involved in a longstanding land dispute which resulted in hostility, threats, and ultimately the fatal attack of 15th September 2020. No reconciliation efforts made. The victim's family continues to suffer profound emotional distress and financial instability, and strongly opposes any non-custodial sentence. 6. The offence of murder carries a death sentence under section 204 of the Penal Code. However, sentencing is an exercise of the court's discretion guided by the Constitution, the relevant laws on sentencing and the importance of the judicial independence. Despite the importance of the judicial independence, sentencing remains the exercise of judicial discretion as stated by the Supreme Court in Francis Iciroko Mwuredu's judgment. Another V. Republic (2017) eKLR, the court stated: '(72) We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process.’ 7. Turning to the present case, the aggravating Factors are substantial, the accused used an axe, metal rod, and blunt weapons targeting the head and neck is evidence of intention to cause death or grievous harm. KK. HCR 38 OF 2020 - RULING 2
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8. The court also notes that, the deceased was said to be a close relative of the accused persons herein since they shared a grandfather; a Factor that heightens the gravity and moral culpability of the offence. The use of such violence demonstrates a clear disregard for the sanctity of human life. 9. The Court is guided by the principles set out in Republic v Tubere s/o Ochen, which require consideration of the weapon used, the manner of its use, the part of the body targeted, and the conduct of the accused before and after the attack in determining culpability and sentence. 10. The Court also takes into account the principle in Ahamad Abolfathi Mohammed & Another v Republic, where it was held that sentencing must be proportionate to both the offence and the offender, and should not be excessive. 11. In balancing these factors, this Court finds that although the offence is grave and calls for a deterrent sentence, the circumstances do not justify the ultimate penalty of death. A lengthy custodial sentence will meet the ends of justice. 12. Accordingly: I. The 1st accused person, ERICK KABAKA SISEI, is hereby sentenced to serve twenty five (25) years' imprisonment for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. II. The 3rd accused person, DAN ESOLIO SISEI, is hereby sentenced to serve twenty five (25) years' imprisonment for the KK. HCR 38 OF 2020 - RULING 3
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offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. III. The 4th accused person, KELVIN ASENEKA, is hereby sentenced to serve twenty five (25) years' imprisonment for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. IV. Pursuant to Section 333(2) of the Criminal Procedure Code, the period lawfully spent in custody, if any, shall be taken into account. From the record, the convicts have been in custody since 15th September, 2020. The actual period spent in remand custody shall be computed by the prison authorities and fully deducted from their respective prison terms. V. The 1st, 3rd, and 4th convicts are hereby informed of their constitutional right to appeal against both this conviction and sentence to the Court of Appeal within fourteen (14) days from today. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 28 th DAY OF JULY, 2026. S.N MBUNGI JUDGE In the presence of:CA: Zilda/Velma Ms Wanyonyi for the 1st,3rd and 4th Accused present online. Ms Emily for ODPP present online. KK. HCR 38 OF 2020 - RULING 4
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