[2017] KEHC 9702 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

HIGH COURT CRIMINAL CASE NO. 45 OF 2011

REPUBLIC......................................................PROSECUTOR

VERSUS

FELIX MUNYAO MAKENZIE.................................ACCUSED

SENTENCE

1. The accused FELIX MUNYAO MAKENZIE was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on 12th March, 2011 at Ongata Rongai Township within Kajiado County murdered HANNAH WANJIRU NDURUMO.He pleaded not guilty and his trial as stated in the judgment herein commenced by Justice Ombija (as he then was) who heard the evidence of all the prosecution witnesses save for one who was partly heard by the said Judge and this court.

2. At the close of the defence case the accused was found guilty and convicted of the offence as charged and in compliance with Sections 323, 329 and 329 ‘A’ – ‘C’ of Criminal Procedure Code and The Sentencing Policy Guidelines, the court ordered for pre-sentencing report which was submitted dated 8th November, 2017 and in which the following issues were raised:-

- The offender was born on 1/11/1975 and scored C- in KCSE.

- He was married to the deceased who was working as a Librarian at Braeburn School in Karen and had two children one aged 20 years from the deceased previous relationship and one 10 years old born to both.

- The accused thereafter got married and has three children with the younger one aged two years old.

- The circumstances leading to the offence is that there was a misunderstanding between the deceased and the accused when the deceased hid the mobile phone of the accused leading to the altercation and a fight from which the accused was thereafter thrown out of the house together with his belongings.

- The accused did not intend to kill the deceased as confirmed by the fact that when he was later on called after the deceased according to him allegedly fell out of a moving matatu he took to her the medical cards which had been issued by his employer and accompanied her to the hospital where she was admitted only to be later barred by her family from visiting her.

- On the victim impact statement it was noted that the family of the deceased failed to avail themselves to be interviewed.

3. In mitigation the accused through his Advocate on record submitted that there was no evidence tendered to show that the accused and the deceased were not in a state of harmony and that the domestic squabble which led to the offence herein arose out the accused attempting to retrieve his mobile phone from the deceased and that the accused had no any other motive than to retrieve the said mobile phone which the deceased resisted.

4. The court was urged to take into account the character of the accused in particular the fact that when he was informed that the deceased needed medical cards to enable her be treated he responded positively and that while in custody while his cell mates broke out of the police cells and escaped, he remained in the said cells because he believed he had nothing to run away from. It was submitted that the accused was a good person who had no previous criminal record as confirmed by the pre-sentencing report.

5. It was submitted that the accused did not intend to cause the death of the deceased and that as a result of the said death he lost the love of his life and the mother of his children which loss is irreplaceable. It was submitted further that although the Supreme Court had not conclusively decided on the constitutionality of death sentence, the court was urged to hold that sentence provided for in the Act is contrary to the spirit of the Constitution of Kenya 2010.

6. Reliance was placed on the case of JACKSON MAINA WANGUI & Another v REPUBLIC High Court of Kenya `at Nairobi Cr. Case No. 35/2012andJOSEPH NJUGUNA MWAURA & OTHERS v REPUBLIC Court of Appeal at Nairobi Cr. Appeal No. 5 of 2008.

7. On behalf of the prosecution it was submitted that the family of the deceased were still in mourning and had not healed. It was submitted that death sentence was a lawful sentence which the court ought to impose.

8. The purpose or objectives of sentence as per the Judiciary Sentencing Policy Guidelines No. 4 are as follows:-

1) Retribution – to punish the offender for his/her criminal conduct in a just manner.

2) Deterrence – to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.

3) Rehabilitation – To enable the offender refrain from the criminal conduct and become a law abiding person.

4) Restorative justice – To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasion victims’, communities’ and offenders’ needs and justice demand that these are met. Further to promote a sense of responsibility through the offenders contribution towards meeting the victims needs.

5) Community protection: to protect the community by incapacitating the offender.

6) Denunciation: to communicate the community’s condemnation of the criminal conduct.

9. When imposing a sentence the Judge must be properly appraised of the purpose or purposes to which specific sentence is directed and must at all times avoid rigid or mathematical approaches and must consider the nature and circumstances of the offence and the history and character of the offender which in my view Section 204 of the Penal Code does not allow as it does not give room for the Judge to take into account both the interest of the offender and the victim.

10. I take the view and hold that punishment should be appropriate to the circumstances as well as the nature of the crime and that allowance should be given to other mitigating conditions as at the time of the commission of the offence.

11. In this matter as submitted by Mr. Anan for the defence the cause of the altercation which led to the eventual death of the deceased was that the deceased refused to hand over the mobile phone to the accused and as stated in the judgment herein mobile phones have been elevated to the level of being next to people’s “shadow” or private property as stated in the now famous Mugabe quotes that:-

“We are living in a generation where people ‘in love’ are free to touch each other’s private parts but are not allowed to touch each other’s phone because they are private.”

12. This is a case that would not have led to the death of the deceased who expected love and care and protection out of her marriage with the accused but which turned out to be characterized with allegations of infidelity, violence and parental interference for which though the accused has been convicted of the offence of murder, the court ought to extend the hand of mercy to the same noting that the accused is aged 42 years and his life is just beginning.

13. Having taken into account the mitigating factors, the presentencing report, the circumstances upon which the offence was committed I have come to the conclusion that this is a matter where the sentence meted out ought to combine both rehabilitation and deterrence objectives while taking into account too the rights and interest of the children of the accused and the deceased and his new family.

14. I am therefore of the considered opinion and hold that a sentence of ten (10) years to be served as follows:-

(a) Seven (7) years imprisonment and

(b) Three (3) years thereafter on probation would best meet the justice of this matter and it is so ordered.

15. Whereas this court is aware of the Court of Appeal decision in JOSEPH NJUGUNA MWAURA & OTHERS v REPUBLIC Criminal Appeal No. 5 of 2008 which departed from its holding in GODFREEY NGOTHO MUTISO v REPUBLIC (2010) eKLR I find a persuasive support in the United State Supreme Court decision in KIMBROUGH v UNITED STATES 552 US 85(2007) where it was held that federal district court Judges have the discretion to impose sentence outside the recommended guidelines range. Having taken into account the objectives for imposing the sentence herein above and I am of the considered view and hold that going outside the scope of Section 204 of the Penal Code would meet the course of justice herein.

16. The accused has a right of appeal against both conviction and sentence while the State has a right of appeal against the legality of the sentence imposed herein.

DATED, SIGNED and DELIVERED at Nairobi this 4th day of November, 2017

………………

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Mr. Anan for the accused

Accused present

Court clerk Tabitha