[2019] KEHC 4988 (KLR)
The court found that both the 2nd and 4th accused were criminally responsible for their actions, which included aggravating factors such as gang defilement and causing a gruesome death. However, the court recognized that the 2nd accused was a minor at the time of the offence and, in accordance with Section 25(2) of...
Source-derived case information.
- Citation
- [2019] KEHC 4988 (KLR)
- Parties
- Applicant: Republic; Defendant: Benson Murathi; Defendant: DGM; Defendant: Simon Mukundi; Defendant: Daniel Gitonga Mwangangi
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 2 of 2016
- Procedural Posture
- Criminal Law / Sentencing
- Outcome
- 2nd accused sentenced to 12 years imprisonment; 4th accused sentenced to 15 years imprisonment; right of appeal in 14 days.
- Judges
- BB Limo
- Legal Topics
- Murder, Sentencing, Juvenile Offenders, Aggravating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Benson Murathi
Defendant
DGM
Defendant
Simon Mukundi
Defendant
Daniel Gitonga Mwangangi
Defendant
Procedural Posture
Criminal Law / Sentencing
Legal Issues
- 1 Whether the 2nd and 4th accused should receive different sentences based on age at the time of the offence.
- 2 Whether the aggravating circumstances, including gang defilement, warrant harsher punishment.
- 3 Whether the law prohibits sentencing a child offender to death.
Ratio Decidendi
The court found that both the 2nd and 4th accused were criminally responsible for their actions, which included aggravating factors such as gang defilement and causing a gruesome death. However, the court recognized that the 2nd accused was a minor at the time of the offence and, in accordance with Section 25(2) of the Penal Code and Section 190(2) of the Children's Act, could not be sentenced to death or detained at the pleasure of the President. Taking into account the mitigating factors and the law, the court sentenced the 2nd accused to 12 years imprisonment and the 4th accused, who was an adult at the time, to 15 years imprisonment.
Court Disposition
2nd accused sentenced to 12 years imprisonment; 4th accused sentenced to 15 years imprisonment; right of appeal in 14 days.
Orders
- 2nd accused is sentenced to 12 years imprisonment.
- 4th accused is sentenced to 15 years imprisonment.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
HCCR NO. 2 OF 2016 (MURDER)
REPUBLIC...............................................PROSECUTOR
VERSUS
BENSON MURATHI................................1ST ACCUSED
DGM...........................................................2ND ACCUSED
SIMON MUKUNDI..................................3RD ACCUSED
DANIEL GITONGA MWANGANGI.....4TH ACCUSED
S E N T E N C E
This court has considered the mitigating circumstances of this case. The prosecution has reiterated that the deceased underwent a lot of pain owing to the fact that after suffering serious injuries 2nd subject and 4th accused respectively subjected her to gang defilement. On that basis the prosecution has urged this court to consider that fact as an aggravating factor in determining an appropriate sentence. It is also true that the 2nd accused is now an adult (approximately 19 years old) because at the material time (22nd March 2016) he was found to be 17 years old. He committed heinous act when he was a teenager which means that in law as provided under Section 14 of the Penal Code he had reached an age where he is taken to be criminally responsible for his actions. So while both the convicted persons have pleaded for leniency owing to their young age, I am satisfied that both of them are equally and criminally responsible for actions which as I have pointed out really aggravated the condition of the deceased. I do agree with the prosecution that the deceased must have really underwent a gruesome death after being defiled left for dead. However I am alive to the provisions of Section 25(2) of the Penal Code which provides that a person who commits murder whilst under the age of 18 years cannot be sentenced to death but should in lieu of death sentence be sentenced to be detained at the pleasure of the President. It is not in the best interest of the 2nd convict who was a 'child' within the children's Act at the time of commission of the offence to be detained at the pleasure of the President. Section 190(2) of the Children's Act prohibits the sentencing of child offenders to death. I am therefore inclined upon taking all mitigating factors and the law into consideration to sentence the 2nd convict to 12 years imprisonment while the 4th convict having committed the act while he was an adult is convicted to serve 15 years imprisonment. Right of Appeal 14 days.
Dated, signed and delivered at Chuka this 25th day of July, 2019.
R.K. LIMO
JUDGE
25/7/2019