https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8380

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL DIVISION** **CRIMINAL CASE NO. 9 OF 2019** **REPUBLIC………………………………………………………..……..PROSECUTOR** **VERSUS** **JOSEPH SIMIYU CONSTANT..……..………………….…..……………..ACCUSED** **SENTENCE** 1. On 22nd January 2019, the accused murdered his two young children, *Melisa Simiyu* and *Venesa Simiyu* (hereafter *the deceased*) at their home in Shauri Moyo, Nairobi County. 2. The murders were horrific as captured in the judgment delivered on 17th March 2026. In a synopsis, the accused, who is their father, poisoned and then stabbed the helpless girls to death. It was a macabre scene: the bodies were lying face down on a mattress on the floor with penetrative stab wounds to their chests. The Government Analyst found traces of poison in their stomach and liver samples. 3. The convict also bore self-inflicted stab wounds; and, a “suicide note” allegedly authored by him, was later recovered in the house. The children had been left under his care after he chased away his wife. 4. Learned Principal Prosecution Counsel, *Ms. M. Kigira,* prays for a stiff and deterrent custodial sentence. She submitted that the accused is a *“perpetual offender and beyond reform”*. According to the CRO report filed in court, there are two previous records: On 26th June 1995 he was sentenced to 6 months for being rogue and vagabond and on 18 December 1997, he was sentenced to 8 months for shop-breaking and stealing. 5. Learned counsel submitted that there are aggravating circumstances and that the penetrating injuries to the chest and poisoning *“was sadistic and a breach of trust by a parent”*. The offence has also had serious impact on the life of the mother, relatives and the community. 6. There is then the mitigation tendered by the accused through his learned counsel, *Mr. Mburu*. He prayed for a non-custodial sentence. Regarding the previous convictions, he submitted that they were for minor offences. He said the accused is remorseful, has reformed and deepened his spirituality as demonstrated in the filed plea titled “mitigation supporting documents”. 7. Counsel stated that on 28th January 2021 the convict was baptized and now participates in holy communion. It is a journey he has walked since he went into custody. He has also attained several certificates displayed to court. In particular, he has mastered tailoring and is a moderator of the church and chief usher. Counsel prayed for mercy in view of the convict’s chronic medical conditions including hypertension and high blood pressure. In summary he implored the court to temper justice with mercy and to take into account the time spent in remand custody. 8. I have then considered the *pre-sentencing report* dated 27th April 2026 under the hand of *Ms. Magdaline Kioni*, Senior Probation Officer, Nairobi. She recommends a *“custodial rehabilitation plan”* owing to the *“calculated nature of the offence and considering that there is no one who is dedicated to oversee the rehabilitation plan”*. 9. The views of the victim’s family are well captured in the social report. The deceased’s children were aged 9 and 3 respectively. Their mother said that although the convict has sought reconciliation, the offence calls for a serious sentence. She added that there can be no compensation for the loss and *“physical, psychological and emotional trauma”*. She also felt that if the accused is released, he would be a threat to her and the community. 10. Murder is a grave felony that attracts the death penalty. However, following the Supreme Court decision in ***Francis Karioko Muruatetu & another v Republic****,* Consolidated Petitions Nos. 15 & 16 of 2015 [2017] eKLR, the *mandatory* nature of the death sentence as provided for under section 204 of the **Penal Code** was declared unconstitutional. 11. It bears repeating that the decision did *not* outlaw the death penalty, but it left the court with discretion to impose a lighter sentence. 12. Sentence *should be commensurate to the moral blameworthiness of the offender* but also guided by the *nature and gravity of crime*. The convict is now aged 48 and seems genuinely remorseful. He has two previous convictions. I have taken fully into consideration his elaborate mitigation and the social report above. 13. But this is a double murder most foul; perpetrated in cold blood by a father against his defenceless daughters aged 3 and 9 respectively. It was well-calculated and ghoulish; perhaps aimed at sending a chilling message to his estranged wife. He first laced their *Fanta* orange drink with a deadly poison and then stabbed the hapless souls on the left side of their chests; aiming for their vital organs. By this twin act of pre-meditated violence, he has left a bloody trail of such great pain and suffering to his wife and family that has completely shattered their lives. 14. I find that justice in this case calls for the ultimate penalty: I sentence the convict to suffer *death* on each count. 15. The accused has a right of appeal to the Court of Appeal within 14 days and as per the Rules of that Court. A copy of the proceedings, judgment and sentence shall be supplied to him immediately. It is so ordered. **DATED, SIGNED** and **DELIVERED** at **NAIROBI** this16th day of June 2026. **KANYI KIMONDO** **JUDGE** **Sentence read virtually on *Microsoft Teams* in the presence of-** Accused. Ms. M. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions. Ms. Zhulekha holding brief for Mr. Mburu for the accused and instructed by Kago Mburu & Associates Advocates. Mr. E. Ombuna, Court Assistant.