[2018] KEHC 9300 (KLR)
The court found that, despite the mitigation and the accused's personal circumstances, the nature of the offence—a fatal stabbing aimed at the chest resulting in death—called for a deterrent custodial sentence. The court considered the objectives of sentencing, the impact on the victim's family, and the accused's...
Source-derived case information.
- Citation
- [2018] KEHC 9300 (KLR)
- Parties
- Applicant: Republic; Defendant: Joseph Maina Nderi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 92 of 2014
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted and sentenced to 20 years imprisonment, with credit for pre-conviction detention.
- Judges
- J Wakiaga
- Legal Topics
- Murder, Sentencing Guidelines, Mitigation, Victim Impact Statement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph Maina Nderi
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should be sentenced to a custodial or non-custodial sentence for the offence of murder.
- 2 What is the appropriate sentence in light of the circumstances and mitigation presented.
Ratio Decidendi
The court found that, despite the mitigation and the accused's personal circumstances, the nature of the offence—a fatal stabbing aimed at the chest resulting in death—called for a deterrent custodial sentence. The court considered the objectives of sentencing, the impact on the victim's family, and the accused's role in the incident. The court determined that a twenty-year imprisonment was just and appropriate, with credit for time served in pre-conviction detention, as required by law.
Court Disposition
convicted and sentenced to 20 years imprisonment, with credit for pre-conviction detention.
Orders
- The accused is sentenced to twenty (20) years imprisonment.
- The period from 7/10/2014 to 21/3/2018 spent in pre-conviction detention shall be credited to the sentence under Section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
HIGH COURT CRIMINAL CASE NO 92 OF 2014
REPUBLIC......................................................................PROSECUTOR
VERSUS
JOSEPH MAINA NDERI........................................................ACCUSED
SENTENCE
1. The convict JOSEPH MAINA NDERI was on 21/3/2018 convicted of the offence of murder of WILLIAM LITUNYA AMBUNDA on 28/9/2014. Upon his conviction the same made an oral application through his advocate on record to be supplied with copies of Judgement to enable the same mitigate which have now been supplied.
2. In mitigation, the accused on 16/5/2018 filed his written mitigation in addition to the oral submissions by Mrs. Nyamongo his Advocate on record. The convict in his written mitigation stated as follows:-
(a) He had been in custody for a long time.
(b) Had a dependant family which looked upon him for upkeep and maintenance.
(c) He was a young man who was hard working.
He sought to be granted non-custodial or Community Service Order with the court taking into account the period he had spent in custody under Section 333 (2)of theCriminal Procedure Code.
3. Mrs. Nyamongo for the convict stated that the convict had been rehabilitated during the period he had been in custody. He was sympathetic with the deceased family since the same was his friend. He was a first offender who came for a very humble background married with two children aged eight (8) and four (4) years together with an aged mother who depended on him.
4. On behalf of the prosecution Ms. Wegulu submitted that the deceased family had been left without a breadwinner and therefore sought a deterrence sentence to discourage the convict from committing similar offences.
5. In compliance with the Judiciary Sentencing Policy Guidelines the court called for Pre-sentencing report which was filed and in which it was indicated that the convict’s parents separated while he was sixteen years of age and was brought up solely by his mother. He dropped out of secondary school while in form two before moving to Nairobi where he engaged in the business of selling fruits and offloading goods from motor vehicles. He denied committing the offence convicted of and is therefore bitter from being convicted.
6. On the Victim Impact Statement, the deceased was staying with an elderly woman who had two children from a previous marriage and was the corner stone of this family which he supported. According to the sister of the deceased, the accused used to be with the wife of the deceased wherever he was away and was allegedly with her on the fateful day.
7. The objectives of sentencing as per the Judiciary Sentencing Policy Guidelines 4. 1 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 reform from his/her criminal disposition and become a law abiding person.
4)Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
5)Community protection: to protect the community by incapacitating the offender.
6)Denunciation: to communicate the community’s condemnation of the criminal conduct.
8. Whereas the convict has sought to be given a second chance to rejoin the society and continue with nation building, I have looked at the circumstances under which the offence herein was committed and whereas the convict only inflicted one stabbed wound upon the deceased, I have noted that it was aimed at the chest and it landed onto the lung of the deceased thereby denying the same an opportunity to survive. I have noted that the accused was a volunteer who responded to the call of the deceased’s wife who was his friend. The accused should not have intermeddled in the dispute between the deceased and his wife save for helping them resolve the same but not to get the deceased out of the way. I have taken note of the sentiments of the deceased sister on the relationship between the deceased and the deceased wife.
9. The action of the accused therefore calls for a deterrence sentence which can only be served in prison. I am therefore satisfied and find that an imprisonment sentence of twenty (20) years would be an adequate, just and appropriate sentence and it is so ordered. Of these terms the convict shall be given credit from 7/10/2014 to 21/3/2018 being pre-conviction detention as period served under the provisions of Section 333 (2) of the Criminal Procedure Code.
10. The convict has a right of appeal both on sentence and conviction while the prosecution has a right of appeal on sentence.
DATED, DELIVERED and SIGNED at Nairobi this 5thday ofJune 2018.
.........................
J. WAKIAGA
JUDGE
In the presence of:-
Miss Wegulu for the State
Mrs. Nyamongo for the accused
Accused present
Court Assistant - Karwitha