[2022] KEHC 11403 (KLR)

Macharia v Republic (Miscellaneous Criminal Application 585 of 2018) [2022] KEHC 11403 (KLR) (Crim) (19 May 2022) (Sentence)

Neutral citation: [2022] KEHC 11403 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 585 of 2018

LN Mutende, J

May 19, 2022

Between

James Kariba Macharia

Applicant

and

Republic

Respondent

Sentence

1. James Kariba Macharia, the Applicant, was charged and convicted of murder contrary to section 203 as read with section 204 of the Penal Code. Following the conviction, he was sentenced by Lessit J. (As she then was) to suffer death. Aggrieved by the decision of the court, he appealed to the appellate court, but, following the decision of Muruatetu vs Republic (2017) eKLR he withdrew the appeal and petitioned this court for re-sentence.

2. Briefly, evidence adduced was that the deceased was the son of the applicant aged three and a half (3½ ) years. The applicant disagreed with his mother, they separated and custody of the child was granted to his mother by the local administrator who arbitrated upon the matter. Following the order, the applicant disappeared with the child and subsequently poisoned him. He also attempted to commit suicide. Upon being found he was taken to hospital and after recovery he escaped but was arrested and charged.

3. In mitigation, the applicant admits having caused pain to his entire family and seeks forgiveness. He urges that having been in custody for ten (10) years he has made peace with himself and God, trained and acquired skills for personal development.

4. In response the respondent urges that the applicant does not deserve a lenient sentence having murdered his son in an inhumane manner and called upon the court to consider imposing a sentence of fifty (50) years imprisonment, a sentence that the applicant equates to the life imprisonment that he is serving following commutation.

5. A report filed by the probation officer following a social inquiry conducted revealed that there was a conflict between the applicant/offender and his wife that resulted into the poisoning of the deceased and the offender attempting to kill himself.

6. The applicant’s siblings are ready to accord him necessary support, if released as he used to support them socially and economically, but, his father does not want to hear anything to do with him following allegations that he wanted to kill him. And that upon release he should not set foot on his home.

7. His wife, a victim, expressed sorrow and bitterness at the loss of a child therefore wants nothing to do with him as her loss is immeasurable.

8. The applicant has been incarcerated for a period of ten (10) years. He has adduced evidence of having participated in a discipleship training, a programme of prison fellowship, stress management and rehabilitative training.

9. In the case of Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 of 2015, the Supreme Court stated that:“(71)To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:(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)Remorsefulness of the offender;(g)The possibility of reform and social re-daptation of the offender;(h)Any other factor that the Court considers relevant.

10. The Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of sentencing at page 15, paragraph 4. 1 as follows:“Sentences are imposed to meet the following objectives: 1. Retribution: To punish the offender for his/her criminal conduct in a just manner.

2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.

3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.

4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.

5. Community protection: To protect the community by incapacitating the offender.

6. Denunciation: To communicate the community’s condemnation of the criminal conduct.”

11. When the applicant was sentenced to suffer death, the court demonstrated to the public generally the consequences of committing such a heinous crime. The applicant became incapacitated for a period that he has been incarcerated.However, following jurisprudence today, the ultimate form of removing a person from the society is rarely considered. Imprisonment and non-custodial sentences have become the most favoured approach.

12. The applicant argues that he has reformed. If given a chance and the right circumstances people change. A person who is rehabilitated should be given the opportunity to return to the community/society so as to become a productive citizen. Although the applicant availed certificates of participation of the training that he attended, there was no recommendation from the officer in charge of the prison to attest to the allegation that he has reformed.

13. The applicant was a first offender, he is stated to be 51 years old. Although he has sought forgiveness, the probation officer did not seek views of members of his community in his regard. His own father cannot tolerate him due to the aversion towards him following the offence committed.

14. In the premises, I hereby re-sentence him to serve thirty (30) years imprisonment to be effective from the date of arraignment, 17th day of October, 2011.

15. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT,THIS 19THDAY OF MAY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMr. Kiragu for the StateMutai - Court Assistant