Simeon Onyando Obwocha v Republic

to as “the Page 2 of 7

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deceased”), while the appellant was a student at Kenyatta University. As the relationship grew, the appellant requested to stay with Irene during the holidays so that he could build a relationship with the children as their step-father. He bonded with the children who would sometimes be left in his care. 3. In December 2018, the deceased confided in her mother that she did not want the appellant to return to their home because he had pinched her on the tummy. This led to a confrontation between Irene and the appellant, leading to the appellant’s exit from the house for a week. When he came back, he again assaulted the deceased and was shown the door by Irene. On 4th January 2019, the appellant returned to the house where he found the deceased playing with other children and called her into the house. He had come with some milk, which he poured into a cup and added some substance to it. The appellant told the deceased to drink the mixture and instructed her to sleep, after which she started vomiting, prompting him to flee. When the deceased’s mother arrived home, she found the deceased vomiting and rushed her to hospital, where she passed away on 7th January 2019 while undergoing treatment. The samples of vomit and residue from the cup were analysed and found to contain Miltaz, an acaricide. 4. Following his arraignment for the offence of murder, the appellant pleaded not guilty, and the case proceeded to hearing. However, after five prosecution witnesses had testified, Page 3 of 7

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the appellant entered into a prosecution and pleaded guilty to Page 4 of 7 plea agreement with the

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the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. He was sentenced to twenty- three (23) years’ imprisonment on 21 st March 2023. 5. In passing the sentence, the learned Judge noted the callousness of the appellant and the cruelty meted out on an innocent child. The Judge also observed that the appellant declined to save the child’s life by refusing to reveal to the hospital the poisonous substance administered to her. Additionally, the Judge found the appellant to be a dangerous person having wormed himself into Irene’s life and benefited from her kind heart before killing her child. She concluded that a custodial sentence would meet the sentencing objectives. 6. In the initial memorandum of appeal filed on 3rd July 2023, the appellant challenged both the conviction and sentence. However, when the appeal came up for hearing on 11 th February 2026, learned counsel, Mr. Asitiba, who was representing the appellant, informed the Court that he had filed an amended memorandum of appeal dated 17th December 2024, together with the submissions, through which the appellant was appealing against sentence only. 7. Arguing the appeal, Mr. Asitiba submitted that the circumstances under which the offence was committed ought to have been taken into account in passing the sentence. Counsel argued that the fact that the appellant was hardly 21 years at the time of the commission of the offence and may not have Page 5 of 7

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appreciated the Page 6 of 7

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consequences of his action was not considered by the learned Judge. Additionally, counsel argued that the appellant had reformed as evidenced by the fact that he had completed his university education. Counsel beseeched the Court to consider that the appellant was a young man, as well as a first offender, and had already spent time in prison. According to counsel, the appellant had saved the trial court’s time by pleading guilty. Relying on Republic vs. Mwangi [2024] KEHC 367 (KLR) and Wanyonyi vs. Republic [1980] KLR 116, among other authorities, counsel posited that a lighter sentence should be imposed where the charge is reduced from murder to manslaughter. He consequently urged that the appeal be allowed and the sentence reduced to the period already served or the appellant be given a non-custodial sentence. 8. In a brief response, Ms. Matiru, learned Senior Assistant Director of Public Prosecutions, who appeared for the respondent, submitted that the appeal was an exercise in futility as the appellant voluntarily signed the plea agreement which was reached in compliance with the applicable rules and procedures. According to her, no good reason had been advanced for the reduction of the sentence. 9. This being an appeal against sentence only, we remind ourselves of the principles that guide an appellate court when dealing with such an appeal by referring to the holding in Gacheru vs. Republic [2002] KECA 94 (KLR) that: Page 7 of 7

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“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 stated is shown to exist.” 10. The question, therefore, is whether the appellant has established grounds warranting interference with the sentence by this Court. Before addressing the issue of the sentence, we will address the allusion by Ms. Matiru that the appellant’s appeal must fail simply because it arises out of a plea agreement. With respect to counsel, we find the argument to be without merit because, as was held Nyatigo vs. Republic [2024] KECA 1820 (KLR), this Court retains the jurisdiction to entertain the appellant’s appeal against a sentence imposed pursuant to a plea agreement. Indeed, notwithstanding the fact that section 137L (1) of the Criminal Procedure Code provides that no appeal shall lie against a sentence passed after a plea agreement, the same provision allows an appeal in regard to “the extent or legality Page 8 of 7 of the sentence

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imposed.” Therefore, a person convicted as a result of a plea Page 9 of 7

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agreement can appeal against the severity or the legality of the sentence imposed by the trial court. 11. Now turning to the germane issue in this appeal, we start by appreciating that section 205 of the Penal Code provides the sentence for manslaughter as follows: “Any person who commits the felony of manslaughter is liable to imprisonment for life.” 12. In the circumstances of this appeal, we note that the trial Judge considered that: the conviction arose from a plea agreement; the appellant’s admission of guilt; and the appellant was a youthful first offender. The learned Judge equally weighed the aggravating circumstances against the mitigating factors. She noted the cruel nature of the offence and the fact that the victim was a defenceless child who trusted the appellant, who nevertheless went ahead to poison her. The learned Judge also observed that despite pleas by the hospital, the appellant declined to disclose the poison he had administered to the child. The learned Judge then proceeded to exercise her discretion by imposing the impugned sentence. 13. Upon reviewing the trial court’s record, we are not persuaded that the sentence is manifestly harsh or excessive. In so holding, we note that it has not been demonstrated to our satisfaction that the learned Judge overlooked material factors, considered irrelevant material, or that the sentence is manifestly harsh or excessive. The trial court, in our view, Page 10 of 7

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correctly applied the relevant sentencing principles, considered both the aggravating and mitigating factors, Page 11 of 7

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and passed a sentence within the provisions of section 205 of the Penal Code. 14. Accordingly, we find no basis for interfering with the appellant’s sentence. We therefore find the appeal to be without merit and dismiss it. 15. It is so ordered. Dated and delivered at Nairobi this 25th day of September 2026. P. O. KIAGE …………………………. . JUDGE OF APPEAL JAMILA MOHAMMED …………….. …………… JUDGE OF APPEAL W. KORIR ………………..……….. JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR Page 12 of 7

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