[2018] KEHC 8861 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death penalty for murder is unconstitutional and that sentencing must be individualized. In this case, although statutory premeditation was established, there was no evidence of substantial planning or particularly heinous...
Source-derived case information.
- Citation
- [2018] KEHC 8861 (KLR)
- Parties
- Applicant: Republic; Defendant: John Nganga Gacheru; Defendant: Joseph Kamau Wanyoike
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 31 of 2016
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Both accused persons sentenced to fifteen years imprisonment each.
- Judges
- EM Ngugi
- Legal Topics
- Murder, Sentencing Guidelines, Death Penalty, Mitigating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
John Nganga Gacheru
Defendant
Joseph Kamau Wanyoike
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the death penalty is merited for the offence of murder committed by the accused persons.
- 2 What is the appropriate sentence for the accused persons in light of the Supreme Court decision in Muruatetu.
- 3 What aggravating and mitigating factors should be considered in sentencing.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death penalty for murder is unconstitutional and that sentencing must be individualized. In this case, although statutory premeditation was established, there was no evidence of substantial planning or particularly heinous conduct. The accused persons' lack of remorse was an aggravating factor, but mitigating factors included their first offender status, apparent intoxication, and the absence of other criminal conduct during the homicide. Balancing these factors, the court found that a custodial sentence of fifteen years was appropriate, with credit for time already spent in custody.
Court Disposition
Both accused persons sentenced to fifteen years imprisonment each.
Orders
- Each accused person is sentenced to serve fifteen years imprisonment.
- Time spent in custody since 10/12/2015 to be considered.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. 31 OF 2016
REPUBLIC ..........................................................PROSECUTOR
VERSUS
JOHN NGANGA GACHERU...................................1ST ACCUSED
JOSEPH KAMAU WANYOIKE................................2NDACCUSED
SENTENCE
1. The Accused Persons, John Nganga Gacheru (“1st Accused”) and Joseph Kamau Wanyoike (“2nd Accused”) (together “Accused Persons”) were charged with murder contrary to section 203 of the Penal Code as read together with section 204 of the Penal Code. On 21/09/2017, I convicted them of the offence of unlawfully killing John Ngatha on 28/11/2015 at Gitombo Area within Kigumo Location in Murang’a County after a fully-fledged trial in which they pleaded not guilty.
2. The circumstances in which the murder was committed are contained in the judgment dated 21/09/2017.
3. At the time of conviction, a conviction for murder attracted a mandatory death sentence in Kenya. This changed on 14/12/2017 when the Supreme Court of Kenya, in Francis Kiarioko Muruatetu & Another v Republic (Sup. Ct. Pet. No. 15 of 2015) decided that the mandatory death penalty imposed under Section 204 of the Penal Code is unconstitutional. In essence, the Supreme Court permitted a Court that has convicted an Accused Person of murder to conduct a sentence hearing to determine the appropriate sentence. I therefore scheduled a sentence hearing on 21/12/2017.
4. The Victim’s family preferred not to file a victim impact statement or address the Court. The Prosecution informed the Court that although both Accused Persons were first offenders, the State prayed for the death sentence in this case. This was because, Mr. Kinyanjui – the Prosecutor – informed the Court, this was a well orchestrated murder. There was nothing in the circumstances of this case, he argued, that would allow the Court to be lenient to the Accused Persons.
5. Mrs. Omung’ala who appeared for the Accused Persons throughout the trial informed that the Court that she had firm instructions from her clients not to mitigate. I confirmed with the Accused Persons that those were indeed their instructions. They each told the Court that they had said all they needed to say during their defence.
6. Death sentence should be reserved for the highest level murder offence. I am certain the homicide in this case does not rise to that level. Although Mr. Kinyanjui argued that the murder in this case was orchestrated, the facts do not bear this out. While the Court found as a fact that the element of statutory premeditation was satisfied in this case, that is not the same thing as saying that there was substantial, orchestrated or intricate planning for the offence. In this case, there was no such evidence. Neither was there evidence that the homicide was committed in a particularly heinous, cruel or depraved manner. For these reasons, I am not persuaded that the death penalty is merited in this case.
7. There is one glaring aggravating factor: both Accused Person actively and positively proved not to be remorseful and refused to acknowledge the crime committed or address the Court on it. I will take that into consideration.
8. There are a number of extenuating circumstances, however, which should reduce the sentence imposed on the Accused Persons. Even though the Accused Persons elected not to mitigate, I have identified the following mitigating factors:
a. It appears from the facts of the case that the Accused Persons were under the influence of either alcohol or some other drugs. Even though this was not offered as a defence and it would not have risen to the level of diminishing their criminal culpability, it is a relevant factor to consider in sentencing since it lowered the degree of blame;
b. Both Accused Persons are first offenders;
c. The homicide did not occur during the commission of another crime or during the immediate flight from the commission of a crime. Instead, it occurred in the midst of a seemingly spectacular and perhaps drunken orgy of violence occasioned by what the Accused Persons believed was a wrong committed on them (helmet stolen).
9. After considering all these factors, I am persuaded that a custodial sentence of fifteen (15) years will be an appropriate sentence for this homicide. In coming up with this global figure, I considered that the Accused Persons have been in custody since 10/12/2015. I therefore sentence each of the Accused Persons to serve fifteen (15) years imprisonment.
10. Orders accordingly.
Dated and Delivered at Kiambu this 16th day of January, 2018.
………………
JOEL NGUGI
JUDGE