[2023] KEHC 19734 (KLR)
The court determined that, given the gravity of the offence of murder and the need for deterrence, a custodial sentence was warranted. The court considered the accused's mitigation, including their roles as family providers, first offender status, and remorse, but found these insufficient to justify a non-custodial...
Source-derived case information.
- Citation
- [2023] KEHC 19734 (KLR)
- Parties
- Applicant: Republic; Defendant: Benjamin Kithinji; Defendant: Bernard Mutura; Defendant: Cosmas Kirimi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 63 of 2015
- Procedural Posture
- Criminal Case / Sentence
- Outcome
- convicted and sentenced
- Judges
- EM Muriithi
- Legal Topics
- Murder, Sentencing Guidelines, Pre Trial Detention Credit, Victim Impact, Mitigation, Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Benjamin Kithinji
Defendant
Bernard Mutura
Defendant
Cosmas Kirimi
Defendant
Procedural Posture
Criminal Case / Sentence
Legal Issues
- 1 Whether a custodial sentence is appropriate for the offence of murder in the circumstances of the case.
- 2 How pre-trial detention should be factored into the sentence under section 333(2) of the Criminal Procedure Code.
- 3 What weight should be given to mitigation, including the accused's family circumstances, remorse, and first offender status.
Ratio Decidendi
The court determined that, given the gravity of the offence of murder and the need for deterrence, a custodial sentence was warranted. The court considered the accused's mitigation, including their roles as family providers, first offender status, and remorse, but found these insufficient to justify a non-custodial sentence. The court also took into account the period of pre-trial detention served by the accused, as required by section 333(2) of the Criminal Procedure Code. Ultimately, the court imposed a sentence of fifteen years' imprisonment for each accused, commencing from the date of sentencing, with credit for time spent in pre-trial detention. The court emphasized the importance...
Court Disposition
convicted and sentenced
Orders
- Each of the two accused, Bernard Mutura and Benjamin Kithinji, is sentenced to fifteen (15) years' imprisonment from the date of this sentence, with credit for pre-trial detention.
- The cash bail deposited for the accused’s attendance at trial shall be released to the depositors.
Full Case Text
Judgment text and source record
28 paragraphs
Republic v Kithinji & 2 others (Criminal Case 63 of 2015) [2023] KEHC 19734 (KLR) (6 July 2023) (Sentence)
Neutral citation: [2023] KEHC 19734 (KLR)
Republic of Kenya
In the High Court at Meru
Criminal Case 63 of 2015
EM Muriithi, J
July 6, 2023
Between
Republic
Prosecution
and
Benjamin Kithinji
1st Accused
Bernard Mutura
2nd Accused
Cosmas Kirimi
3rd Accused
Sentence
1. This is a ruling on sentence of the two accused persons, Accused 1 and 2, who were convicted for the offence of murder contrary to section 203 as read with 204 of the PenalCodeby the judgment of this court delivered on 23/ 2/ 2023.
2. Both accused had served a period of pre-trial detention awaiting their trial. Bernard Mutura was released on 13th November, 2012 upon deposit of Kshs 100,000/= cash bail. Benjamin Kithinji was released on January 18, 2018. Bernard had been detained to await his trial on September 7, 2015, and therefore was in custody for (2) years and (2) months before release on bail. Benjamin who was released on the same date September 7, 2015 was in custody for (2) years and (4) months.
3. In mitigation, Counsel for the Accused Mr. H. Kirimi mistakenly indicated that the 2 accused had been in custody since 2015 suggesting that they had been in pre-trial detention all the while and sought a non-custodial release. They were out on bond until February 23, 2023 when judgement was delivered and the case was fixed for sentencing proceedings administrating in the sentence today the July 6, 2023 a period of about 4 months which makes the total pre-trial detention for the accused to be respectively, (2) years and (6) months and (2) years (8) months for the 1st and 2nd accused.
4. In their own mitigation the accused urged that they were providers for their young families of respectively 3 and 4 children. Counsel for the accused said the accused were 40 years and 39 years old, first offenders and remorseful for their actions.
5. The DPP relied on the presentence Probation Officer’s Report on the two accused persons and urged the court to consider to sentiments of the victims pursuant to Victim Protection Act and that Murder is a serious offence which should not be taken casually as happened in this region. Mr. Masila, Prosecution Counsel urged the court to impose a custodial sentence citing Judiciary Sentencing Policy Guidelines and the role of the court “to sensitize the community of the wrong which are done to innocent citizens and that no matter the circumstances there are other ways of resolving disputes other than Murder”.
6. The court has considered the mitigation by the accused, the submissions of their counsel and counsel for the prosecution and the circumstances of the case where the deceased was killed on suspicion of having stolen miraa belonging to the 3rd accused, which the two accused 1 and 2 were hired to guard.
7. The court agrees with the DPP that a custodial sentence is necessary for purposes of deterrence. While in prison the accused shall be reformed through prison discipline system to facilitate their rehabilitation into the society upon release. The court considers that an imprisonment term for about twenty (20) years would meet the justice of the case. The sentence shall take into account the pre-trial detention of the accused in terms of section 333 (2) of the Criminal Procedure Code.
Orders 8. Accordingly, for the reasons set out here, having convicted the two accused 1 and 2 for the offence of murder under section 203, as read with 204 of the Penal Code, the Court passes for each accused 1 and 2, Bernard Mutura and Benjamin Kithinji, a sentence of imprisonment for a period of fifteen (15) years from today, taking into account that the accused have been in pre-trial detention of close to three years.
9. The cash bail deposited for the accused’s attendance for their trial shall be released to the depositors.Orders accordingly.
DATED AND DELIVERED THIS 6TH DAY OF JULY, 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. Masila for DPP.Mr. E. Kimathi with Mr. H. Kirimi for the Accused.