[2017] KEHC 2406 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 24 OF 2015

REPUBLIC……………………………………...………………….PROSECUTOR

VERSUS

DAMARIS MUENI MUSAU……………………………………………ACCUSED

RULING ON SENTENCE

Damaris Mueni Musau was tried for murder contrary to section 203 as read with section 204 of the Penal Code. She was found guilty as charged and convicted. Mr. Ratemo told the court that he would not mitigate on behalf of his client because he believes that she is innocent. His reasons were that this court failed to take into account his detailed submissions and authorities and that had the court done so, it would have arrived at a different conclusion. Perhaps to put this matter into perspective, it is prudent to mention that this court concluded this trial on 22nd June 2017 and this court set the date for judgment as 26th September 2017. It gave defense up to 3rd July 2017 to put in submissions. As at that time, no submissions had been filed. I took time with the file to give more allowance for late filing of submissions but by the time of writing this judgment in August 2017, there were no submissions in the file.

That notwithstanding, this court went back on record and considered the submissions made by the defense after the prosecution had closed its case and proceeded with the judgment. This court has considered the evidence and the law including case law in arriving at its decision. The court was persuaded that the prosecution has met the legal threshold in proving the case and convicted the accused.

Mitigation is a right of every accused person. It is a requirement of the law that before an accused person who has been convicted is sentenced he or she must be given an opportunity to mitigate. Section 216 of the Criminal Procedure Code provides that “the court may, before passing sentence or making an order against an accused person under Section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.”

It is also a requirement of Section 329 of the Criminal Procedure Code that “the court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”

I have dealt with a matter of similar nature in Nairobi Criminal Case No. 29 of 2011, Republic v Samson Alube Ngota & another reported in [2017] eKLR.The accused persons were found guilty and convicted for murder. They refused to mitigate. My view has always been that an accused person who has been convicted of an offence should take the opportunity allowed by the law and mitigate. Failure to do so is to waive ones rights to any future action that may be taken in respect of his or her case in the event he goes on appeal or even later when the issues of prerogative of mercy arise. The same view was taken by a bench of three judges in Joseph Kaberia Kahinga & 11 others v. Attorney General [2016] eKLR where the court stated that:

“……….we are of the view that although it may appear that Kenyan courts have no discretion to consider mitigation in the case where an accused person is convicted of a capital offence, however, we hold that it is a constitutional requirement for such an accused person to be granted an opportunity to present his mitigating circumstances before sentencing.

This is because Article 50(2) of the Constitution sets out some of the principles that are considered to constitute fair trial. One of these principles is the right to lodge an appeal or apply for review in a higher court, if convicted (see Article 50 (2) (q)). Such mitigation will enable a court hearing the appeal to have a holistic view of the case, and in the event that the appellate court decides to alter the conviction from a capital offence to any other offence, it will have all the facts and circumstances of the accused on record to enable it assess the appropriate sentence for the reduced offence. Further, some mitigating circumstances may disclose certain facts that materially affect the finding made by the court to such an extent that it may result in the court arriving at a different decision.”

It is imperative for defense counsel to explain this to the accused person and ensure that he/she understands before he or she makes the decision not to mitigate. The live of a case does not end with a conviction before the court of first instance. It stays alive until all the appellate avenues have been exhausted. Care should therefore be taken that an accused who has been convicted of a criminal case does not close the doors against himself or herself by waiving the right to mitigate.

That having been said, it is my duty to pronounce sentence in this matter. This court has been told that the accused has no other criminal record and should be treated as a first offender. I have taken this into account. The penalty for murder is death by dint of section 204 of the Penal Code. I therefore sentence Damaris Mueni Musau to death as provided in law. She shall suffer death in the manner authorized by the law of Kenya. Orders shall issue accordingly.

Delivered, dated and signed this 4th day of October 2017.

S. N. Mutuku

Judge