https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10978

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **MISCELLANEOUS CRIMINAL APPLICATION NO. 37 OF 2020** **FELIX MUCHITI ...…………………………………..….……….…...………… APPLICANT** **VERSUS** **REPUBLIC …..…………………………………………………….…..……… RESPONDENT** **RULING** 1. The Applicant was convicted of the offence of murder contrary to section 203 as read with Section 204 of the Penal Code in a trial vide Kakamega HCCR. Case No. 5 of 2010. Consequently, he was sentenced to the mandatory death sentence. 2. Being aggrieved with the decision of the trial court, the Applicant lodged an appeal in Kisumu CACRA No. 45 of 2015. In a judgement delivered on 3rd April 2020, the Court of Appeal dismissed the Applicant’s appeal against conviction and in pursuance of the Supreme Court’s decision in **Francis Karioko Muruatetu & Another v. Republic, Katiba Institute & 5 others (Amicus Curiae [2021] KESC 31 (KLR)** and remitted the case back to the High Court for re-sentencing. 3. In an undated application filed on 10th February 2021, the Applicant sought re-sentencing premised on the *Muruatetu* case and pursuant to the directions of the Court of Appeal. 4. In a ruling dated 15th November 2021, W. Musyoka J. directed the Deputy Registrar to call for a certified copy of the judgement of the Court of Appeal and put it together with the original record to facilitate the re-sentencing. 5. The Applicant did not make ay submissions while the Respondent aligned itself with the Probation Officer’s report filed on 29th January 2026 after the court had referred the matter to them for purposes of undertaking a social inquiry. 6. From the sentence review report, the Applicant is aged 49 years old and has been in prison for 15 years having been committed to prison in March 2015. He had seven siblings, five of whom are deceased as are his parents. He has a close relationship with his two surviving siblings who have maintained regular contact with him through visits to prison. He is married and is blessed with two children, one of who is deceased. His wife works as a domestic worker in Nairobi. 7. According to the sentence review report, the Applicant had no previous criminal record and his wife has expressed willingness to receive and live with him upon his release. 8. The Applicant is reported as having actively engaged in prison industrial programmes, particularly welding, prior to developing ill health. He therefore acquired practical skills which he will be able to apply in the event of release. It is indicated that the prison authorities reported that he has maintained good conduct throughout his incarceration, with no record of indiscipline or adverse behavior. 9. The Probation Officer recommended that the court consider reducing the Applicant’s custodial sentence or converting it to a non-custodial alternative. 10. Article 50 (2) (p) of the Constitution provides that a convict do benefit from the least severe of the prescribed punishments for an offence, if the prescribed punishment has been changed between the time of the offence and the time of sentencing. 11. Once the Supreme Court declared the mandatory death sentence unconstitutional, the courts were obligated to review any death sentence passed upon conviction of any accused person for murder. 12. In reviewing the sentence, the court needs to consider and evaluate the mitigating factors as enumerated in the *Muruatetu Case (supra)* when it issued the following guidelines:- ***“vii.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;*** ***(a)Age of the offender;*** ***(b)Being a first offender;*** ***(c)Whether the offender pleaded guilty;*** ***(d)Character and record of the offender;*** ***(e)Commission of the offence in response to gender-based violence;*** ***(f)The manner in which the offence was committed on the victim;*** ***(g)The physical and psychological effect of the offence on the victim’s family;*** ***(h)Remorsefulness of the offender;*** ***(i)The possibility of reform and social re-adaptation of the offender;*** ***(j)Any other factor that the court considers relevant.”*** 1. Additionally, the objective of sentencing as set out in paragraph 1.3 of the Judiciary Sentencing Policy Guidelines must be considered. The objectives are as follows:- ***“a) Retribution: To punish the offender for their criminal conduct in a just manner.*** ***b) Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.*** ***c) Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person.*** ***d) Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.*** ***e) Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.*** ***f) Denunciation: To clearly communicate the community’s condemnation of the criminal conduct.”*** 1. For avoidance of doubt, the M*uruatetu* decision did not abolish the death penalty. The Supreme Court emphasized so and clarified that it remained the maximum sentence at the Judge’s discretion for the most severe of cases. 2. Having said that, the Applicant was convicted of murdering his father; whom he used to live with. The evidence was that the deceased had succumbed to a severe neck injury as a result of being beaten by the Applicant. The deceased had also sustained a broken leg. 3. I have carefully considered the pre-sentence report and weighed the mitigating and aggravating factors in this case. I have also considered the fact that the Respondent aligned itself with the sentence-review report, which recommends the reduction of the sentence or in the alternative, converting it to a non-custodial sentence. Taking all factors into account, I find that the objectives of sentencing have not been achieved by the Applicant’s fifteen (15) years’ incarceration considering the nature of the offence. 4. In the end, I hereby substitute the death sentence with a sentence of thirty (30) years imprisonment. The said sentence shall be deemed to have commenced from 13th January 2010 when the Applicant was first arraigned in court in line with Section 333 (2) of the Criminal Procedure Code. 5. Orders accordingly. Dated, signed and delivered at Kakamega this 20th day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Applicant in person Ms. Chala for the Respondent Court Assistant: Polycap