Tom Ongu'ra v Republic

3. Aggrieved with the sentence, the appellant lodged a notice of appeal on 31st March 2022. The appellant thereafter filed a memorandum of appeal dated 2nd July 2025 with this Court, and he set the grounds of appeal as: (i) 4. The appellant is fully seeking refuge in the provisions of Article 165(3)(a), (b), 159(2)(a) and (b) and 22(4) of the Constitution of Kenya bearing in mind the Supreme Court decision in Francis Karioko Muruatetu & Ar v Republic (2017) eKLR. (ii) The sentence of fifteen (15) years was manifestly excessive and harsh on the appellant in view of the circumstances of the case. (iii) That further grounds will be adduced at the hearing. The appellant also filed his submissions with the memorandum of appeal while the Respondent filed submissions dated 15 th July 2025. 5. We heard the appeal on 20th May 2026. Learned counsel Mr Ariho Ngundu appeared for the appellant while learned Assistant Director of Public Prosecutions Ms Sarah Ogweno appeared for the respondent. Appellant’s submissions 6. The appellant submitted that the 15-year sentence imposed on him was manifestly excessive and disproportionate in the circumstances of his case. 7. The appellant relied on Francis Karioko Muruatetu & Ar v R Page 2 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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(2017) eKLR to contend that some of relevant factors to consider Page 3 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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before sentencing were the age of the offender, whether it was a first offender, plea of guilty, character and record of the offender, remorse, possibility of reform and re-adaptation to society and circumstances of the commission of the offence were some of the factors to be considered. 8. According to the appellant, the High Court did not take into consideration his mitigation on age, mental state at the time of commission of the offence, remorse, and guilty plea. The appellant also faulted the High Court for not calling for a presentencing probation report, a victim impact assessment report, and not considering the period served in remand during the trial. 9. To support the assertions, the appellant cited Bethwel Wilson Kibor v R (2009) KECA 143 (KLR), Bonaya Tutu Ipu & Ar v R (2015) KECA 335, Isaack Kimanthi Kanuachobi v R (2013) KECA 392 (KLR), Morris Aluoch v R (1997) KECA 29 (KLR) and John Muendo Musau v R (2013) KECA 266 (KLR) to urge that the period served in custody and the circumstances under which the offence was committed were all relevant factors, and to demonstrate that 7 to 10 years imprisonment sentences for manslaughter had been given in those cases. Page 4 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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The Respondent’s submissions Page 5 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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10. The respondent started its submissions by reminding the Court of its role on a first appeal as set out in Otieno & Ar v R (2025) KECA 1020 (KLR). 11. The respondent then cited section 361(1) of the Criminal Procedure Code and Bernard Kimani Gacheru v R (2002) KECA 94 (KLR) to submit that sentence was a question of fact and was at the discretion of the trial court, and an appellate court would not easily interfere unless it was shown that the sentence was manifestly excessive, the trial court failed to consider some material factor, took into account some wrong material or acted on a wrong principle. 12. According to the respondent, manslaughter was a grave offence and a felony attracting a mandatory life imprisonment. On whether the High Court considered the appellant’s mitigation, the respondent contended that the court took into account the fact that the appellant was a first offender, was remorseful, was the sole breadwinner for his family, and had not intended to commit the offence. In the view of the respondent, the sentence of 15 years was proportional to the offence and that the authorities relied on by the appellant had Page 6 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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their own unique facts and circumstances. Page 7 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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13. We have considered the appeal and submissions by the appellant and respondent. Before us is a first appeal and our mandate is well settled. Given that the appellant pleaded guilty to the charge of manslaughter, the only issue that we can address on appeal and which is before us is that of sentence. Under section 361(1) of the Criminal Procedure Code, sentencing is a matter of fact. The appellant is, therefore, challenging the exercise of discretion on a matter of fact by the High Court. 14. Our remit in an appeal on a matter of fact (sentence) has followed a well-trodden path. In Benard Kimani Gacheru vs. R (2002) eKLR it was stated: ‘‘It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e., shown to exist.” Page 8 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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15. In the instant appeal, the appellant was convicted for the offence of manslaughter and sentenced to 15 years. Under section 205 of Page 9 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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the Penal Code, the sentence for manslaughter is life imprisonment. On the face of it, the sentence of 15 years imprisonment was lawful, and we so hold. 16. The discussion must, therefore, move to the question whether the High Court failed to consider some material factor(s), considered factors it ought not have, or acted on the wrong principles. The appellant appeared to suggest that the High Court did not consider his mitigation, that is age, that he was a first offender, had pleaded guilty, was remorseful and was capable of being reformed, circumstances of the commission of the offence and re- adapting back to the society. 17. The record indicates that the High Court considered some of the factors placed before by the appellant. The record shows: ‘‘Accused pleaded guilty, first offender, mitigation noted. However, the circumstances of the offence must be treated with the seriousness deserved. The deceased did not provoke the accused neither was there any suggestion that the deceased was involved in an immoral act with the accused’s wife apart from being seen together. The force used against the deceased by the accused using a dangerous weapon such as a hoe (jembe) was excessive, suggestive of the intention to cause grievous harm or even death. Indeed, the sheer force used by the accused to assault the deceased led the deceased suffering severe head injury which ultimately caused his death. Page 10 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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A deterrent sentence is clearly called for in the present circumstances even though the accused pleaded guilty.’’ 18. Did the High Court fall into error by not considering some of the mitigating factors such as age and marital status placed before it by the appellant. We do not think so. If the High Court or a trial court were to consider each and every mitigating factor placed before it, or the factors set out in the Sentencing Guidelines, sentencing would move away from a discretionary exercise of power based on balancing the factors at play to a mathematical exercise. A trial court ought to be allowed the deference or leeway to consider those factors it believes are appropriate in each particular case. 19. Nevertheless, we note from the record that the appellant was arrested on 18th October 2021, and arraigned in court on 23 rd October 2021. He was granted bond on 7 th December 2021, and that the bond security documents were released to the surety on 23rd March 2022 upon his conviction. The appellant was therefore in custody from 18th October 2021 to 7th December 2021, a period of 51 days. The High Court did not factor the 51 days into the sentence as required by section 333(2) of the Criminal Procedure Code. This was a legal error. Page 11 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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20. Flowing from the above, the appeal against sentence partially succeeds only to the extent that the period of 51 days the appellant spent in custody from 18 th October 2021 to 7th December 2021 shall be taken into account in computing the sentence of 15 years imprisonment imposed upon him pursuant to section 333(2) of the Criminal Procedure Code. 21. Orders accordingly. Dated and delivered at Kakamega this 25th day of September, 2026. P. NYAMWEYA .................................. JUDGE OF APPEAL R. NGETICH ................................ JUDGE OF APPEAL RADIDO S. OKIYO ................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR Page 12 of 8 Judgement -Kakamega Criminal Appeal No. E004 of 2026

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