[2020] KEHC 3257 (KLR)
Despite the probation reports recommending non-custodial sentences and the accused persons being first offenders with mitigating personal circumstances, the court found that the gravity of the offence—murder of two persons with common intention and use of weapons—outweighed the mitigating factors. The court...
Source-derived case information.
- Citation
- [2020] KEHC 3257 (KLR)
- Parties
- Applicant: Republic; Defendant: Jones Wamabura Kiratu alias Mwita; Defendant: Tagane Mwita Sandwe alias Mtanzania; Defendant: Stephen Mahigara Kiratu alias Mahinga Wmabura Kiratu
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 36 of 2018
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- All accused persons sentenced to 30 years imprisonment for each count of murder, sentences to run concurrently.
- Judges
- REA Ougo
- Legal Topics
- Murder Sentencing, Death Penalty, Probation Reports, Sentencing Guidelines, Mitigating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jones Wamabura Kiratu alias Mwita
Defendant
Tagane Mwita Sandwe alias Mtanzania
Defendant
Stephen Mahigara Kiratu alias Mahinga Wmabura Kiratu
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused persons should be sentenced to death or given a custodial or non-custodial sentence for murder.
- 2 What weight should be given to the probation reports and mitigating factors presented by the defence.
Ratio Decidendi
Despite the probation reports recommending non-custodial sentences and the accused persons being first offenders with mitigating personal circumstances, the court found that the gravity of the offence—murder of two persons with common intention and use of weapons—outweighed the mitigating factors. The court emphasized the objectives of sentencing, including retribution, deterrence, and community protection, and held that justice demanded a custodial sentence. The court also considered relevant precedent, noting that lengthy custodial sentences are appropriate for murder even where the death penalty is not mandatory. Accordingly, each accused was sentenced to 30 years imprisonment for each...
Court Disposition
All accused persons sentenced to 30 years imprisonment for each count of murder, sentences to run concurrently.
Orders
- Each accused person is sentenced to 30 years imprisonment for each count of murder.
- The sentences shall run concurrently.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
HIGH COURT CRIMINAL CASE (MURDER) NO 36 OF 2018
(Coram; OUGO J)
REPUBLIC …...………………………….……………………PROSECUTION
VERSUS
JONES WAMABURA KIRATU
ALIAS MWITA…………….……………………….…………..1ST ACCUSED
TAGANE MWITA SANDWE
ALIAS MTANZANIA…....………………………………….…2ND ACCUSED
STEPHEN MAHIGARA KIRATU
ALIAS MAHINGA WMABURA KIRATU …....…………...3RD ACCUSED
SENTENCING
1. Jones W. Kiratu, the 1st accused, Tagane S. Mwita, the 2nd accused and Stephen M. Kiratu, the 3rd accused person have been convicted of murdering 2 persons vide a judgment dated the 20th May 2020.
2. The penalty for the offence of murder is the death sentence. I am alive to the fact the pursuant to the decision of the Supreme Court in the case of Francis Karioko Muruatetu & Another vs R (2017) eKLRthe Supreme Court found that the mandatory death penalty was unconstitutional.
3. The defence counsel has submitted that the accused persons are first offenders they are remorseful and have young families. That they seek leniency request that the accused persons be give a non-custodial sentence. That they have health problems.
4. The prosecution indicated that they are first offenders and that they had no records of a previous conviction.
5. The probation reports were tendered. The 1st accused Jones is said to be 32 years old. He is married and has 3 children. The report indicates that he has no report of criminality and that he is good person. That he is the sole breadwinner of his family. That the family is willing to have him back in the community. The report recommends a probation sentence. The 2nd accused’s report indicates that he is 35 years old. That he is married and has 5 children. The recommendation on the 2nd accused is similar to that of the 1st accused. The 3rd accused is 46 years old. He is married to 2 wives and has 11 children. The report recommendation is that he be given a non-custodial sentence. I note that the officer who wrote the reports did not note that 2 persons lost their lives and that the accused persons were convicted of two counts of murder. The reports are quite similar in context and only mention the name of one deceased.
6. According to The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary, the sentence imposed must meet the following objectives in totality;
(a) Retribution: To punish the offender for his/her criminal conduct in a just manner.
(b) Deterrence: To deter the offender from committing a similar offence subsequently as well as discourage other people from committing similar offences.
(c) Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.
(d) Restorative justice: To address the needs arising from criminal conduct such as loss and damages.
(e) Community protection: To protect the community by incapacitating the offender.
(f) Denunciation: To communicates the community’s condemnation of the criminal conduct.
7. I have considered all the above and that the fact the accused persons/ convicts were convicted of murder of 2 persons. The facts as narrated in court were that the accused person were armed with pangas and sword when the injuries were inflicted on the deceased persons. They had a common intention to finish the 2 persons.
8. Although a non-custodial sentence is recommended however in my view justice demands that a custodial sentence is appropriate. I have noted that the 2nd accused has been in custody from October 2018. In John Ndede Ochodho alias Obago v Republic KSM CA Criminal Appeal No. 120 of 2014 (2018) eKLR, the Court of Appeal upheld a sentence of 30 years in a case of murder where the appellant assaulted the deceased several times causing his death. Considering all this I sentence each accused person to 30 years in jail for each count. The sentence shall run concurrently.
Dated signedanddeliveredat KISII this 30th day of June 2020.
R.E. OUGO
JUDGE
In the presence of:
Mr. Nyangwencha For the Accused Persons
1st Accused Person Present
2nd Accused Person Present
3rd Accused Person Present
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Rael Court Assistant