https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6748

Republic v Githiga (Criminal Case 17 of 2019) [2026] KEHC 6748 (KLR) (14 May 2026) (Sentence) Neutral citation: [2026] KEHC 6748 (KLR) Republic of Kenya In the High Court at Kajiado Criminal Case 17 of 2019 CW Meoli, J May 14, 2026 Between Republic Prosecutor and Jimmy Njenga Githiga Accused Sentence 1.Following a full trial, the court found the Accused herein guilty and convicted him for the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The penalty provided for the offence is a death sentence, but in light of recent pronouncements by the Supreme Court, the penalty is not mandatory and the trial court retains the discretion to mete out the sentence it considers most appropriate for the case at hand. See Francis Karioko Muruatetu & another v Republic [2017] eKLR. 2.The court called for a presentence report and regarding antecedents of the Accused, the prosecution treated him as a first offender. The court has considered this latter fact and mitigation by his counsel addressing primarily, the personal circumstances of the Accused and calling for a determinate sentence. As emerges from the presentence report, the Accused is advanced in age, having retired from the public service several years ago. 3.Sentencing is a vital part in the administration of justice. Thus, clause 4.6.1 of the Sentencing Guidelines (2023) provides inter alia that the sentencing process is an integral part of the trial and is therefore subject to the fair hearing constitutional guarantees. The Supreme Court of India in the case of, Antony Pareira V State of Maharashtra (2 AIR 2012 SC 3802) held that that:“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentencе commensurate with the nature and gravity of crime and the manner in which the crime is done." 4.These views were reiterated by the Supreme Court of Kenya in Francis Karioko Muruatetu & another v Republic [2017] eKLR where it was held that although the death sentence prescribed for the offence of murder in the Penal Code remained lawful, the mandatory nature of the sentence was unconstitutional as it tended to take away the discretion of the court in sentencing. Directing that re-sentence hearings be conducted for affected convicts and prisoners, the court listed some pertinent factors applicable in re-sentencing for the conviction of a murder charge as follows;(a)age of the offender(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant. 5.The Supreme Court was also quick to add the caveat that:“’[72] We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process". 6.Clause 1.3 of the Sentencing Guidelines (2023), identifies the objectives of sentencing as: -“a)Retribution: To punish the offender for his/her criminal conduct in a just manner. It serves to deter future crime. Victims and society might feel satisfied that the criminal justice system is functioning well when they learn that the offender has received an appropriate sentence for their crimes, which raises trust in the criminal justice systemb)Deterrence: To deter the offender from committing a similar offence or any other offence in future as well as to discourage the public from committing similar offences. Thus, it is divided into two components: individual and general deterrence. Individual deterrence is to dissuade the perpetrator with the objective to inflict a punishment severe enough to deter the offender from engaging in criminal activity. The convict is expected to be discouraged from committing crimes in the future as a result of the sentence. The society is the target of general deterrence. Other people are deterred from committing those offences by the punishment meted out to those who commit them.c)Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person. It aims at changing the offenders and make it easier for them to reintegrate into society, through a variety of programs and treatments. It focusses on treating the root reasons of criminal behaviour, such as dependency, mental health conditions, or a lack of education. The objective is to give the offender the resources and assistance they need to upon release, become law-abiding citizens.d)Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender's contribution towards meeting those needs. Any harm done to the victim may be compelled to be repaired or restored by the court. The goal is to put the victim back in his pre-crime status or position. The goal of restoration is to make up for any harm the perpetrator has caused the victim.e)Restitution deters crime by financially penalizing the offender. It is somewhat like a civil lawsuit damages judgement and occurs when the court directs the offender to compensate the victim for any injury. Restitution may be required in cases of financial loss, property damage, and, in rare cases, mental suffering. It may also take the form of a fine to help defray part of the expense of the criminal investigation and punishment.f)Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender's criminal acts.g)Denunciation: To clearly communicate the community's condemnation of the criminal conduct.h)Reconciliation: To mend the relationship between the offender, the victim and the community.i)Reintegration: To facilitate the re-entry of the offender into the society.j)Incapacitation's main purpose is to simply keep offenders outside of society so that everyone is safe from their potentially harmful actions. A person convicted of a crime should not be permitted to mingle with the general public if there is no assurance that they will not commit the same crime again. In certain civilizations, punishment takes the form of death sentence, or it may entail a sentence of life in jail without the chance of release.” 7.These guidelines apply to all criminal offences. In sentencing, the court is guided by these objectives and the circumstances of the case before it. The presentence report herein though highlighting that the Accused was a first offender, indicates that the Accused despite pleading for a non-custodial sentence expressed no remorse for the offence. Equally, it is indicated that the Kibiko community from which he hailed did not view him positively and was in fear of him. 8.The victim of the offence in this case was a step-brother to the Accused. It appears that prior to the offence, the Accused on one hand and his deceased step -brother and other siblings on the other hand, were involved in a protracted and bitter tussle over a parcel of land which, the Accused claimed had been bequeathed to him by their late father who had owned it in his life time. 9.Evidence tendered revealed that the Accused, then holding the position of Chief Kibiko area and apparently perceiving the deceased as his key antagonist, had severally threatened the deceased’s life as the succession case in respect of the disputed asset was ongoing in court. In addition, the deceased’s house had on two occasions been set on fire in circumstances suggesting that the arson was the continuation of a campaign to intimidate the deceased into silence. All this culminating in the gruesome murder of the deceased at his home on the material morning. 10.In the attack, the deceased was literally decapitated and disemboweled in what was clearly a well-planned and methodically executed murder plot. There can be no justification for such violence, and in the court’s view, such acts of egregious savagery call for appropriate sanctions. More so as the Accused was in the material period occupying the position of a chief and therefore ought to have known better than to take the law, of which he was a custodian, in his own hands. 11.Based on the contents of the presentence report, the Accused has yet to acknowledge his crime and responsibility. This must be the first step if he is to commence the journey of reform. 12.It is therefore the considered opinion of the court that the facts of the case and offender’s attitude militate against a lenient sentence. But rather call for a sentence that, in addition to granting a chance for introspection and possibly rehabilitation to the Accused, also sufficiently conveys the society’s denunciation of the atrocious offence committed by a mature public officer. Accordingly, the Accused is sentenced to serve 40 years imprisonment. DELIVERED AND SIGNED IN OPEN COURT AT KAJIADO ON THIS 14TH DAY OF MAY 2026.C. MEOLIJUDGEIn the presence of:For the State: Ms. KihumbaFor the Accused: Ms. Mageto holding brief for Mr. OmbatiAccused: PresentC/A: Lepatei