[2021] KEHC 819 (KLR)
Despite the pre-sentence report recommending a non-custodial sentence based on the accused's remorse, family circumstances, and forgiveness from the victim's family, the court found that the gravity of the offence—murder committed with grievous harm and no provocation—warranted a custodial sentence. The court...
Source-derived case information.
- Citation
- [2021] KEHC 819 (KLR)
- Parties
- Applicant: Republic; Defendant: Clemensia Nyamoita Nyabuto
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Murder Case 17 of 2020
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- accused sentenced to six years imprisonment
- Judges
- REA Ougo
- Legal Topics
- Murder, Sentencing Guidelines, Mitigation, Non Custodial Sentence, Provocation, Remorse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Clemensia Nyamoita Nyabuto
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused should be sentenced to a custodial or non-custodial sentence for the offence of murder.
- 2 Whether the mitigating factors presented by the accused and the pre-sentence report justify a departure from the mandatory death sentence for murder.
Ratio Decidendi
Despite the pre-sentence report recommending a non-custodial sentence based on the accused's remorse, family circumstances, and forgiveness from the victim's family, the court found that the gravity of the offence—murder committed with grievous harm and no provocation—warranted a custodial sentence. The court considered the mandatory nature of the death penalty for murder but exercised discretion, guided by the Sentencing Policy Guidelines and the circumstances of the case, to impose a term of imprisonment rather than the death penalty. The court concluded that the accused's actions, resulting in the loss of life, outweighed the mitigating factors and justified a custodial sentence of six...
Court Disposition
accused sentenced to six years imprisonment
Orders
- The accused, Clemensia Nyamoita Nyabuto, is sentenced to six (6) years imprisonment.
- Right of appeal explained to the accused.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL CASE NO 17 OF 2020 (MURDER)
REPUBLIC.......................................................................................PROSECUTOR
VERSUS
CLEMENSIA NYAMOITA NYABUTO................................................ACCUSED
RULING ON SENTENCING
1. On the 29/10/2021 Clemensia Nyamoita Nyabuto was convicted of the murder of Concepta Mogere Momanyi.
2. The accused is a 1st offender I sought a pre-sentence report on the accused person.
3. The report indicates that the accused is 39 years old, she is a mother of 3 children who are in school and depend on her.
4. That the victim’s husband has forgiven her and that the family members are positive and they request for a non-custodial sentence and that the local administrator is equally positive. The report recommends a non-custodial sentence of probation and to undergo trauma debriefing and anger management session.
5. The accused person mitigation was that she is very remorseful for the events of 25/5/2020 and that she begs for forgiveness.
6. I have taken into account the Judiciary Sentencing Policy Guidelines. Punishment for a person convicted of murder is death.
7. From the evidence adduced the accused attacked the deceased at her home. The weapons she used caused grievous harm to the deceased. A life was lost as a result of her actions. In her defence she did not raise any issue of provocation. This came out during cross-examination by the prosecution. Though a non-custodial sentence has been recommended. In my view the accused’s action warrants a custodial sentence. I therefore sentence Clemensia Nyamoita Nyabuto to six (6) years imprisonment. Right of Appeal explained.
DATED, SIGNED AND DELIVERED AT KISII THIS 30TH DAY OF NOVEMBER 2021.
R.E. OUGO
JUDGE
In the presence of;
Accused - Present
Miss Nduhukire for the Accused Person
Mr. Morande - State Counsel ODDP
Isindu - Court Assistant