https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1400

Mutuma v Republic (Criminal Appeal 8 of 2018) [2026] KECA 1400 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1400 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 8 of 2018 W Karanja, A Ali-Aroni & JM Ngugi, JJA July 3, 2026 Between George Mutuma Appellant and Republic Respondent (Appeal from the Judgment of the High Court of Kenya at Meru (Wendoh, J.) dated 7th December, 2017 in HCCRC No. 39 of 2011) Judgment 1.This is an appeal by George Mutuma. He was convicted of the offence of murder by the High Court sitting at Meru (R.P.V. Wendoh, J.) in a judgment delivered on 7th December 2017 in Criminal Case No. 39 of 2011. Thereafter, the court (Mabeya, J.) sentenced him to death. The appellant had been charged with and convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code for the killing of Jennifer Gakiiru Meru on the night of 10th and 11th July 2011 at Kanyakine Market in the then Imenti South District. 2.Although the Memorandum of Appeal initially challenged both conviction and sentence, the appeal underwent an important narrowing by the time it came up for plenary hearing before this Court. Through counsel, the appellant expressly abandoned the appeal against conviction and confined his challenge to the sentence only. Accordingly, the conviction is no longer contested before us and stands affirmed. What remains for determination is whether the sentence imposed by the High Court ought to be interfered with and, if so, what sentence is appropriate in the circumstances. 3.The factual background leading to the conviction may be stated briefly. The prosecution case at trial was built entirely on circumstantial evidence. The deceased, Jennifer Gakiiru Meru, lived alone. On the material night, several witnesses testified to seeing the appellant emerge from the deceased’s premises while holding keys belonging to her. He was seen fleeing by jumping over a wall after throwing away the keys. When the witnesses entered the deceased’s house shortly thereafter, they found her lying dead on the bed, naked. A post-mortem examination established the cause of death as asphyxia due to strangulation. The deceased had bruises around the neck and injuries consistent with forceful compression of the neck. 4.The appellant denied the offence and raised an alibi defence. He maintained that he had not been at the scene and that he was elsewhere at the material time. The trial court rejected that defence, finding that the circumstantial evidence formed a complete and unbroken chain pointing irresistibly to the appellant as the perpetrator of the offence. The learned Judge was satisfied that the prosecution had proved the charge of murder beyond reasonable doubt and convicted the appellant accordingly. 5.On sentence, the learned Judge stated as follows:“Mitigation has been noted…. However, the only sentence for murder is death. Accordingly, I sentence the accused to suffer death as by law provided.” 6.That statement accurately reflected the dominant understanding of section 204 of the Penal Code at the time the sentence was imposed. The sentencing took place just days before the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, in which the apex Court declared the mandatory nature of the death sentence for murder unconstitutional to the extent that it deprived courts of sentencing discretion and prevented individualized sentencing. 7.This appeal, therefore, comes before us in a significantly altered constitutional landscape. The appellant no longer challenges his conviction; instead, he argues that the sentence imposed cannot stand because it was meted out under a sentencing regime subsequently declared unconstitutional in its mandatory aspect. 8.The appeal came for plenary hearing before us on 11th February 2026. Mr. Mahugu Mbarire, learned counsel, appeared for the appellant. Ms. Joyce Gacheru, learned Principal Prosecution Counsel, appeared for the respondent. 9.At the commencement of the hearing, counsel for the appellant formally clarified that the appeal was against sentence only and that the appeal against conviction had been abandoned. Counsel informed the Court that he would rely fully on the written submissions and authorities filed on behalf of the appellant. 10.The respondent initially indicated that it opposed the appeal. However, upon engagement with the Court, it became clear that the respondent did not contest the proposition that the sentence had been imposed under the pre-Muruatetu mandatory sentencing framework and that re- sentencing was, therefore, warranted. The real disagreement narrowed to the appropriate substituted sentence. While the respondent initially appeared to urge retention of the death sentence, the State ultimately conceded that a custodial term sentence would be appropriate and, when invited by the Court to propose a suitable sentence, recommended a term of thirty years’ imprisonment. 11.It is against that background that we turn to the parties’ arguments and the single issue of sentence that falls for determination. 12.Counsel for the appellant submitted that the death sentence imposed by the High Court could not stand because it was imposed under the pre- Muruatetu mandatory sentencing regime. Counsel argued that the sentencing court treated death as the only legally available sentence and therefore did not undertake the individualized sentencing exercise now required by the Constitution and by the jurisprudence of the Supreme Court. 13.Counsel emphasized that the appellant was now seeking only re- sentencing and urged the Court to consider the mitigating circumstances in his favour. First, counsel submitted that the appellant had accepted responsibility for his actions and had demonstrated remorse. Second, counsel urged the Court to consider the period already spent in incarceration. The appellant had remained in custody continuously since his arrest in July 2011, meaning that by the date of hearing he had spent approximately fifteen years in custody. Third, counsel submitted that the appellant had endured the severe psychological burden associated with prolonged confinement under a death sentence, including the uncertainty and mental anguish attendant to death-row incarceration. Fourth, counsel pointed out that the appellant was a first offender and relatively young. He had been arrested at about thirty years of age and was approximately forty-six years old at the time of hearing. Counsel urged us to impose a definite custodial sentence or, in the alternative, to find that the period already served was sufficient punishment. 14.For the respondent, although written submissions had initially defended both conviction and sentence, the State ultimately accepted during oral hearing that the sentence imposed under the mandatory regime required reconsideration. The respondent nevertheless urged the Court to take into account the aggravating circumstances of the offence in fashioning an appropriate substituted sentence. 15.The State emphasized the brutal nature of the killing. Particular reliance was placed on the manner of death – strangulation - which, counsel submitted, demonstrated significant violence and intentional infliction of fatal harm. The respondent also emphasized the vulnerability of the deceased and the circumstances under which she was killed. Ultimately, when invited by the Court to propose an appropriate custodial term, the respondent recommended a sentence of thirty years’ imprisonment. 16.In light of the appellant’s abandonment of the appeal against conviction, only one issue falls for determination: whether the sentence of death imposed by the High Court should be set aside and, if so, what sentence should be substituted. 17.The legal starting point is now settled beyond controversy. In Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Supreme Court held that section 204 of the Penal Code is unconstitutional to the extent that it imposes a mandatory death sentence upon conviction for murder. The Supreme Court did not declare the death sentence itself unconstitutional. Rather, it held that what violates the Constitution is the mandatory nature of that sentence because it deprives courts of discretion to consider the individual circumstances of the offender, the offence, and the victim before imposing a sentence. 18.The significance of Muruatetu cannot be overstated. Sentencing is among the most solemn judicial functions. It is the point at which the abstract commands of criminal law meet the concrete realities of human conduct, suffering, accountability, and societal protection. The Constitution requires that sentencing be individualized, proportionate, and just. A sentencing regime that mechanically imposes a single punishment for all offenders convicted of a particular offence, regardless of differences in culpability and circumstances, is incompatible with these constitutional imperatives. It follows, therefore, that where a sentence for murder was imposed under the pre-Muruatetu mandatory framework, an appellate court is entitled, indeed obliged, to revisit that sentence and conduct a proper re-sentencing exercise. 19.Re-sentencing is a judicial re-evaluation of punishment through the lens of sentencing principles. In carrying out that exercise, a court must consider both mitigating and aggravating circumstances and seek a sentence that appropriately reflects the objectives of criminal punishment, including retribution, deterrence, rehabilitation, denunciation, accountability, and protection of society. 20.We begin with the mitigating factors. We accept that the appellant is a first offender. There is no record of prior criminal conduct. We also take into account his age. He was relatively young when arrested and remains a comparatively young man. We further accept that he has now spent a substantial period in custody - approximately fifteen years when both pre-trial and post-conviction incarceration are taken into account. 21.We also acknowledge, as courts increasingly have, the unique psychological burden associated with prolonged death-row incarceration. Even after Muruatetu, one cannot ignore the mental suffering attendant to years spent under sentence of death, uncertain whether execution might eventually be carried out. That prolonged uncertainty is itself a relevant sentencing consideration. 22.We also take note of counsel’s representation that the appellant is remorseful and has accepted responsibility for his actions. Remorse, when genuine, is an important indicator because it speaks to the offender’s moral reckoning with the wrong committed and to prospects of rehabilitation. However, as with all such assertions, remorse must be weighed in the context of the entire record. 23.However, against these mitigating considerations stand powerful aggravating factors. First and most importantly, this was a case of femicide. We use that term deliberately. The killing before us cannot be viewed merely as the abstract taking of human life detached from social context. The victim here was a woman killed in circumstances that strongly implicate gendered vulnerability and gendered violence. The law must remain alive to the structural realities within which violence against women occurs. Femicide is not simply homicide where the victim happens to be female. It refers to the killing of women in circumstances shaped by gendered power, domination, vulnerability, coercion, or violence. Courts should not ignore those realities. Doing so would risk rendering invisible the social conditions that often make women disproportionately vulnerable to lethal violence. 24.Secondly, the manner of killing was especially brutal. The deceased did not die from a sudden or accidental blow. She died from strangulation. Strangulation is a deeply violent mode of killing. It often requires sustained physical force applied over a period of time sufficient to deprive the victim of oxygen until death occurs. It therefore frequently involves prolonged terror, helplessness, and intense suffering on the part of the victim. 25.Thirdly, the circumstances of the offence suggest profound violation of bodily autonomy and personal security. The deceased was found naked in her house. The post-mortem evidence noted injuries including bruising and blood in the genital area. While no separate sexual offence charge was brought and we must therefore avoid definitive findings beyond the conviction before us, these circumstances undeniably intensify the gravity of the offence. 26.We have carefully weighed the competing considerations. We are not persuaded that this is among the rarest and most exceptional cases warranting retention of the death sentence. Although the aggravating circumstances are serious, we are satisfied that the sentencing objectives of accountability, denunciation, deterrence, and societal protection can adequately be served by a long custodial sentence. 27.At the same time, we are equally unpersuaded by the appellant’s counsel’s submission that the period already served is sufficient punishment. The offence was grave. The violence was severe. The aggravating circumstances - particularly the gendered dimension of the killing and the brutal manner of death - place this case well beyond the category where release after the period already served would be compatible with the demands of justice. 28.Sentencing requires proportionality. The punishment imposed must fit both the crime and the offender. In our view, the appropriate sentence in this case is one that recognizes the appellant’s mitigation and prospects of rehabilitation while at the same time unmistakably marking society’s condemnation of brutal violence against women. Doing the best we can in that balancing exercise, we are satisfied that a custodial sentence of thirty (30) years’ imprisonment strikes the appropriate balance. Indeed, we agree with the respondent’s ultimate recommendation in that regard. 29.We shall therefore set aside the sentence of death and substitute it with a sentence of thirty (30) years’ imprisonment, to run from 14th July, 2011 - the date of the appellant’s first arraignment before the trial court, credit being given for time spent in pre-conviction custody in accordance with section 333(2) of the Criminal Procedure Code. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.W. KARANJA..................JUDGE OF APPEALALI-ARONI..................JUDGE OF APPEALJOEL NGUGI..................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR