[2015] KEHC 318 (KLR)
The court held that, under section 204 of the Penal Code, there is no discretion in sentencing for murder; the only lawful sentence is death. The judge acknowledged the mitigation presented by the defence but found that, as the law currently stands and as interpreted by the Court of Appeal, the court is bound to...
Source-derived case information.
- Citation
- [2015] KEHC 318 (KLR)
- Parties
- Applicant: Republic; Defendant: George Njoroge Ndung’u
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 60 of 2011
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- conviction and sentence to death
- Legal Topics
- Murder, Sentencing, Mandatory Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
George Njoroge Ndung’u
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the court has discretion in sentencing for murder under section 204 of the Penal Code.
- 2 Whether mitigation can affect the sentence for murder in Kenya.
Ratio Decidendi
The court held that, under section 204 of the Penal Code, there is no discretion in sentencing for murder; the only lawful sentence is death. The judge acknowledged the mitigation presented by the defence but found that, as the law currently stands and as interpreted by the Court of Appeal, the court is bound to impose the death penalty for murder. The judge emphasized the constitutional and statutory mandate to uphold the law as it is, regardless of personal views or the circumstances of the convict.
Court Disposition
conviction and sentence to death
Orders
- The accused is sentenced to death as provided under section 204 of the Penal Code.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 60 OF 2011
REPUBLIC……………………………..……………..PROSECUTOR
VERSUS
GEORGE NJOROGE NDUNG’U………………………….ACCUSED
SENTENCE
George Njoroge Ndungu, the convict, was tried and found guilty for the murder of Michael Kaberu Ndung’u. In mitigation before sentence, his counsel told the court that the convict is 48 years old and was operating a motor cycle commonly referred to as boda boda.Counsel said that the accused is the sole bread winner for his elderly parents and three children and that he suffers from stomach ulcers. Counsel said that the convict is remorseful for the death of his brother and that he has been in custody since 2011. Counsel asked the court to exercise leniency in sentencing.
The law provides only one type of penalty for murder. Under section 204 of the Penal Code which is the penalty section, it is provided that:
Any person convicted of murder shall be sentenced to death.
In the case of Joseph Njuguna Mwaura & 2 others v Republic [2013] eKLR, among other cases, the Court of Appeal held that death penalty in Kenya is sanctioned by the Constitution. This remains the law in Kenya until it is changed. This being the situation, this court wonders what purpose the mitigation of any convicted person serves. I have however considered the mitigation by the convict in this case. As a judge of this court who has taken the oath of office to uphold the constitution without fear or favour I find that I have no discretion in the matter than to impose the penalty allowed by the law. I therefore sentence to the accused to death as provided under section 204 of the Penal Code. He shall suffer death as authorized by the law. Orders shall issue accordingly.
Dated, signed and delivered this 3rd December 2015
S. N. MUTUKU
JUDGE
In the presence of:
Ms Magoma for the prosecution
Mr. Muchemi, defence counsel
Mr. George Njoroge Ndung’u, accused
Mr. Daniel Ngumbi, court clerk