[2019] KEHC 149 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional as it removes judicial discretion. The court must therefore consider the individual circumstances of the offender and the offence, including mitigating factors such as remorse, period...
Source-derived case information.
- Citation
- [2019] KEHC 149 (KLR)
- Parties
- Applicant: Republic; Respondent: David Njoroge Njogu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 88 of 2014
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- accused sentenced to twenty years imprisonment
- Judges
- JK Mulwa
- Legal Topics
- Murder, Sentencing Principles, Judicial Discretion, Mitigation, Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
David Njoroge Njogu
Respondent
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should be sentenced to the mandatory death penalty or a lesser sentence for the offence of murder.
- 2 What mitigating factors should be considered in sentencing the accused for murder.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional as it removes judicial discretion. The court must therefore consider the individual circumstances of the offender and the offence, including mitigating factors such as remorse, period spent in custody, health, and prospects for reform. In this case, despite the accused's remorse and reformation, the offence was serious and unprovoked. The court found that a non-custodial sentence would not serve the objectives of sentencing. Taking into account the five years already spent in custody and the mitigating factors, the court exercised its discretion to impose a...
Court Disposition
accused sentenced to twenty years imprisonment
Orders
- The accused is sentenced to serve twenty (20) years imprisonment.
- Right of appeal within fourteen (14) days explained.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT ATNAKURU
CRIMINAL CASE (MURDER)NO. 88 OF 2014
REPUBLIC............................................................PROSECUTOR
-VERSUS-
DAVID NJOROGE NJOGU.................................RESPONDENT
SENTENCE
The accused David Njoroge Njogu was convicted for the offence of murder of one Kennedy Waithingo on the 16th May 2019.
In his mitigation, he expressed remorseful and sought for forgiveness from the state and the deceased family urging that he has reformed and now a pastor and preacher. He has been in custody since August 2014.
The court was told that the accused has been unwell and had undergone abdominal surgery. He believes, if given a non-custodial sentence, he would be a useful person in his community.
The offence the accused committed was very serious, and completely unprovoked. He is a first offender.
The principles of sentencing are stated in the Judiciary Sentencing Policy, and buttressed by the Supreme Court of Kenya decision in Francis Karioko Muruatetu and Another –vs- Republic, (2017) e KLRamong others.
The court while passing sentence is obligated to consider the following:
Age of the offender
Being a first offender
Whether offender pleaded guilty
Character and record of the offender
Remorsefulness of the offender
Possibility of reform and social re-adoption into the community.
The core objectives of sentence are
Retribution,
Deterrence
Rehabilitation,
Restorative justice
Community protection
Denunciation
Restorative justice seeks to address the needs arising from the criminal conduct such as the loss and damage and to promote a sense of responsibility through the offender’s contribution towards the victim’s needs. In deterrence, the offender is barred from committing such or similar offences. It discourages other persons from committing such offences.
Rehabilitation is made to enable the offender to reform from his criminal disposition and become a law abiding person.
I have taken into account the above, including the 5 years period the accused has been in custody.
The judicial sentencing guidelines are only advisory, and do not replace judicial discretion – Johana Munyao Mweni (2018) e KLR.
The offence of murder is punishable under Section 204 of the Penal Code. It is a minimum death sentence.
However, the minimum death sentence, indeed all minimum prescribed sentences take away judicial discretion, despite individual characters and circumstances.
The Supreme Court in the Muruatetu case (Supra), declared Section 204 Penal Code as inconstent with the Kenya Constitution, to the extent that it provides for the mandatory death sentence for murder. It however did not outlaw the death sentence, which remains a discretionary maximum punishment.
Upon exercise of judicial discretion, courts have since imposed other sentences for the offence of murder, but upon consideration of the circumstance of each.
In Republic –vs- Joseph Kirui (2019) e KLR, this court imposed life imprisonment to the offender.
In Republic –vs- Evans Musioma Bichanga (2019) e KLRa seven years imprisonment was imposed upon the offender.
Considering the unwarranted killing of the deceased by the accused hereof, and being guided by the principles stated above and upon consideration of the mitigating factors, I find that non-custodial sentence will not serve the purpose a sentence is made to serve. I therefore proceed to sentence the accused to serve twenty (20) years imprisonment.
Right of Appeal within fourteen (14) days explained.
Delivered, Signed and Dated at Nakuru this 6th Day of November 2019.
.......................
J.N. MULWA
JUDGE