[2020] KEHC 9305 (KLR)
The court found that, in light of the Supreme Court's decision in Muruatetu, the mandatory death penalty is unconstitutional and that sentencing must be individualized. The convict's remorse, rehabilitation efforts, and the forgiveness by the deceased's mother were significant mitigating factors. The court...
Source-derived case information.
- Citation
- [2020] KEHC 9305 (KLR)
- Parties
- Respondent: Republic; Defendant: Lucas Githuka Gatiba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 37 of 2012
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Convict sentenced to three years probation with conditions; fallback custodial sentence if breached.
- Judges
- J Wakiaga
- Legal Topics
- Murder, Sentencing Guidelines, Mitigation, Rehabilitation, Probation, Remorse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Lucas Githuka Gatiba
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 What is the appropriate sentence for the convict found guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code.
- 2 Whether the circumstances and mitigation justify a non-custodial sentence or probation.
Ratio Decidendi
The court found that, in light of the Supreme Court's decision in Muruatetu, the mandatory death penalty is unconstitutional and that sentencing must be individualized. The convict's remorse, rehabilitation efforts, and the forgiveness by the deceased's mother were significant mitigating factors. The court considered the seven years already spent in remand as adequate punishment and determined that the convict is a suitable candidate for rehabilitation. Therefore, a probation sentence of three years was imposed, conditional upon non-interference with the deceased's mother, with a fallback custodial sentence of ten years if the condition is breached.
Court Disposition
Convict sentenced to three years probation with conditions; fallback custodial sentence if breached.
Orders
- The convict is sentenced to a probation period of three years during which he must undergo rehabilitation and resettlement in society.
- The probation order is conditional upon the convict not interfering with the life of the mother of the deceased; breach will result in ten years imprisonment from the date of judgment.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL CASE NO. 37 OF 2013
REPUBLIC....................................................RESPONDENT
VERSUS
LUCAS GITHUKA GATIBA..............................ACCUSED
SENTENCE
1. The convict was found guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code of the murder of LG. What the court is called upon now to determine is what constitute the most appropriate sentence thereon.
2. The starting point in his Judicial Function is Section 204 of the Penal Code as read together with the Supreme Court of Kenya decision in the case of FRANCIS KARIOKO MURUATETU & ANOTHER v REPUBLIC [2017] eKLR where the Supreme Court found that the mandatory nature of death penalty was unconstitutional and ‘out of sync with the progressive Bill of Rights’ in Kenya’s 2010 Constitution (see paragraph 64 thereof). The trial court was therefore mandated to conduct presentencing hearing to determine whether the death penalty is deserved in each and every case.
3. In compliance with the Supreme Court determination and the provisions of the Judiciary Sentencing Policy Guidelines, the court called for pre-sentencing report and allowed the convict to offer his mitigation.
PRE-SENTENCING REPORT
4. It was stated therein that the convict aged thirty five (35) years was a mason at Kiganjo area in Thika at the time of his arrest having been a hawker and matatu tout before then. He was married to the mother of the deceased who took off after arrest.
a) Attitude toward the offence: it was stated that the convict on the material day came home while drunk and took the child from his mother so as to give her time to prepare supper and he fell asleep while holding the baby, who fell down. He was stated to be very remorseful and regret the circumstances leading to the death.
b) Accused family view:they described him as law abiding before the offence and had kept in contact with him throughout the period he had been in custody.
c) Community view:The mother of the deceased stated that they had lived a quiet life prior to the murder and that she had forgiven the convict. She had since moved on and did not object to the convict being granted non-custodial sentence provided he does not seek reconciliation or re-union with her.
MITIGATION
5. In mitigation the convict stated that he was remorseful and had been in remand since 2013, where he had reconstructed his life and had learned to manage his anger, which led to the offence, having gone through Bible Study and stopped drinking alcohol and sought non-custodial sentence.
6. In response the prosecution stated that he should be treated as a first offender. It was stated that though there were no strong mitigating factors on sentencing, the same should be treated as a first offender.
SENTENCING OBJECTIVES
7. As per the Judiciary Sentencing policies and Guidelines the sentencing objectives upon conviction 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. In this matter, I have looked at the circumstances leading to the commission of the offence herein and in particular the fact that the convict was at some stage in a relationship with the sister of the mother of the deceased, who testified before me as PW2, whose presence in the life of the convict and his wife might have fueled the animosity which led to the subsequent death of the deceased and find that the convict is a suitable candidate for rehabilitation. His mitigation and the pre-sentencing report support rehabilitation objective.
9. I have further taken into account the fact that the convict had been in remand custody for the last seven (7) years, which to my mind, in view of the circumstances herein, is an appropriate and adequate punishment and would therefore sentence him to a probation period of three (3) years during which he should undergo further rehabilitation and to be resettled in society on condition that he does not interfere with the life of the mother of the deceased who has since moved on and it is ordered.
10. The probation order is conditional upon the convict not interfering with the life of his former wife failure to which he shall serve an imprisonment period of ten (10) years from the date of the judgment.
11. The convict has a right of appeal on both conviction and sentence whereas the prosecution has a right of appeal on sentence.
Dated, signed and delivered at Nairobi this 12th day of February, 2020.
........................
J. WAKIAGA
JUDGE
In the presence of:-
Mr. Okeyo for the State
Mr. Kimani for Mathenge for the Accused
Accused present
Court assistant- Karwitha