[2019] KEHC 4014 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and sentencing is discretionary. The court considered the accused's mitigation, his age, remorse, the fact that he is a first offender, the pre-sentence report indicating community...
Source-derived case information.
- Citation
- [2019] KEHC 4014 (KLR)
- Parties
- Respondent: Republic; Defendant: Mathayo Lukavilo Sifuna
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 28 of 2016
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted and sentenced
- Judges
- CM Njagi
- Legal Topics
- Murder, Sentencing Discretion, Mitigation, Mandatory Sentences, Custodial Sentence, Pre Sentence Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Mathayo Lukavilo Sifuna
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the mandatory death sentence for murder is constitutional in light of recent Supreme Court jurisprudence.
- 2 What is the appropriate sentence for the accused, considering mitigation and time spent in custody.
- 3 Whether the period spent in custody should be considered in sentencing.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and sentencing is discretionary. The court considered the accused's mitigation, his age, remorse, the fact that he is a first offender, the pre-sentence report indicating community acceptance, and the period of over three years spent in custody. The court also considered comparable sentences in similar cases. Given these factors, and the circumstances that the accused killed his father after a quarrel, the court determined that a custodial sentence of fifteen years imprisonment was appropriate and proportionate.
Court Disposition
convicted and sentenced
Orders
- The accused is sentenced to fifteen (15) years imprisonment.
- The period spent in custody since May 2016 shall be taken into account.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL CASE NO. 28 OF 2016
REPUBLIC....................................................................PROSECUTOR
VERSUS
MATHAYO LUKAVILO SIFUNA.....................................ACCUSED
SENTENCE
1. The accused was on the 16th May, 2019 convicted by this court of the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. Miss Wilunda who appeared for the accused mitigated on his behalf that he is aged 29 years. That he is a young person and that he is remorseful for committing the offence. That he was a casual labourer. The advocate urged the court to be lenient in sentencing.
2. The state asked the court to treat the accused as a first offender.
3. The court called for a pre-sentence report which was prepared by a probation officer Mr. Masingila M. Gregory. The report indicates that the family and the community of the accused are not opposed to him being released to the community.
4. Section 204 of the Penal Code provides for a mandatory death sentence for the offence of murder. However in Francis Karioko Muruatetu & Another –Vs- Republic (2017) eKLR the Supreme Court held that the mandatory death sentence for murder as provided in Section 204 of the Penal Code is inconsistent with the Constitution. In the premises the sentence of death provided in Section 204 of the Penal Code is a discretionary maximum sentence.
5. Sentencing is a discretion of the trial court. In Ambani –Vs- Republic (1990) KLR, the High Court held that sentence imposed on an offender should be commensurate with the moral blameworthiness of the offence committed and that the court should take into account all the facts and circumstances of the case in its entirety before settling for a particular sentence.
6. Section 333 (2) of the Criminal Procedure Code requires a court when sentencing an accused person to take into account the period spent in custody awaiting trial. The accused herein was charged in May, 2016. He has therefore been in custody for a period of over 3 years.
7. I have considered other cases where sentences for murder were imposed. In Republic –Vs- Stephen Wekesa Wasike (2014) eKLR Mutuku J. sentenced the accused to 20 years imprisonment after convicting him of murder. In Elizabeth Mwiyaithi Syengo –Vs- Republic (2019) eKLR where the accused had been sentenced to death, Kemei J. re-sentenced the accused to 20 years imprisonment.
8. The deceased herein was the father to the accused. The accused killed his father by inflicting a serious injury on his head after a quarrel over planting of flowers in their compound. Upon considering all the circumstances of the case, the mitigation by the accused and the period spent in custody I sentence the accused to serve fifteen (15) years imprisonment.
Delivered, dated and signed in open court at Kakamega this 18th day of September, 2019.
J. NJAGI
JUDGE
In the presence of:
Miss Kibet for State
Miss Wilunda for accused
Accused - present
Court Assistant - George
14 days right of appeal.