[2021] KEHC 5167 (KLR)
The court found that the 1st accused, as the instigator and an adult, deserved a harsher sentence due to premeditation, violation of restraining orders, and her leadership role in the offence. The 2nd accused was confirmed to be a minor at the time of the offence, but the court determined that both the 2nd and 3rd...
Source-derived case information.
- Citation
- [2021] KEHC 5167 (KLR)
- Parties
- Applicant: Republic; Defendant: Magdaline Nduku Kiio; Defendant: Erick Kiio Kithuka; Defendant: Sammy Kiio Kithuka
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal Case12 of 2019
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- conviction and custodial sentence imposed
- Judges
- GMA Dulu
- Legal Topics
- Murder, Sentencing, Juvenile Offenders, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Magdaline Nduku Kiio
Defendant
Erick Kiio Kithuka
Defendant
Sammy Kiio Kithuka
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused persons should be sentenced as adults or minors given their ages at the time of the offence.
- 2 What is the appropriate sentence for each accused person convicted of two counts of murder in light of aggravating and mitigating factors.
- 3 Whether prior court orders and previous criminal conduct should aggravate the sentence.
Ratio Decidendi
The court found that the 1st accused, as the instigator and an adult, deserved a harsher sentence due to premeditation, violation of restraining orders, and her leadership role in the offence. The 2nd accused was confirmed to be a minor at the time of the offence, but the court determined that both the 2nd and 3rd accused should be sentenced as adults given their current ages and the gravity of the offence. The court considered the aggravating factors, including prior criminal conduct and disregard for court orders, and the mitigating factors, such as the 1st accused's parental responsibilities and the ages of the 2nd and 3rd accused. Ultimately, the court imposed 25 years imprisonment...
Court Disposition
conviction and custodial sentence imposed
Orders
- 1st accused Magdaline Nduku Kiio sentenced to 25 years imprisonment on each count, sentences to run concurrently.
- 2nd accused Erick Kiio Kithuka sentenced to 10 years imprisonment on each count, sentences to run concurrently.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HIGH COURT CRIMINAL CASE NO. 12 OF 2019
REPUBLIC...................................................................................................PROSECUTION
VERSUS
MAGDALINE NDUKU KIIO.......................................................................1ST ACCUSED
ERICK KIIO KITHUKA...............................................................................2ND ACCUSED
SAMMY KIIO KITHUKA.............................................................................3RD ACCUSED
RULING ON SENTENCE
1. The three (3) accused persons herein have been convicted of two counts of murder contrary to section 203 as read with section 204 of the Penal Code.
2. I have been told by the defence counsel that the 2nd and 3rd accused persons are minors, and that the 1st accused person has a 4 year old child who is currently living with relatives.
3. The Prosecution Counsel on the other hand, has submitted that the 3rd accused person had another previous case in Kilungu Court for assault and he committed the present offence while on probation. I also note that Probation Officer’s report shows that though court orders had been issued by the Machakos court, the three accused persons chose to disobey those restraining court orders and committed this offences.
4. Having been availed, perused and considered the Victim Impact Report dated 19th April 2021 prepared and filed by Sammy Munyasya, the Probation Officer – Makueni, it is clear to me from the report that the three accused persons showed an inclination to be violent and, even in the face of existing court orders regarding resolution of the land dispute, they proceeded to commit the offences.
5. I note that though counsel for the accused persons has said that the 2nd and 3rd accused persons are minors, the Probation Officers reports show that only the 2nd accused Sammy Kiio Kithuka was said to be 15 years in 2019. The 3rd accused person was by then 19 years, and 1st accused person was 36 years old.
6. From the evidence on record, the offence was instigated by the 1st accused person who is the mother of the 2nd and 3rd accused persons and it was a premeditated offence of violence, violating existing court restraining orders.
7. I thus sentence the 1st accused Magdaline Nduku Kiio to 25 years imprisonment on each count. The 2nd and 3rd accused Erick Kiio Kithuka and Sammy Kiio Kithuka will each serve 10 years imprisonment on each count as in my view, they are all adults now and were so convicted as adults. Sentences to run concurrently.
Delivered, signed & dated this 15th day of July 2021, in open court at Makueni.
GEORGE DULU
JUDGE