[2022] KEHC 17228 (KLR)

Republic v Meri (Criminal Case 26 of 2015) [2022] KEHC 17228 (KLR) (3 November 2022) (Sentence)

Neutral citation: [2022] KEHC 17228 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 26 of 2015

DO Chepkwony, J

November 3, 2022

Between

Republic

Prosecution

and

Mwaga Meri alias Katui Mere Lugwe

Accused

Sentence

1. The accused person, Mwaga Meri Alias Katui Mere Lugwe is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya.The particulars of the offence are that:“On the 10th day of September, 2012 at Mitunguni Village, Silaloni Sub-location within Kwale County, the accused person murdered Agnes Kanzala”.

2. The matter proceeded on trial whereby the accused person was found guilty and convicted for the murder of Agnes Kanzala.

3. The matter was then referred to the Probation Officer for a Social Inquiry to be conducted in respect of the accused person and a Pre-sentence Report filed so that together with records from the prosecution and mitigation statement by the accused person, the court is advised on what sentence to mete out against the accused person. The Pre-sentence Report in this case was filed and I have read through it.

4. For most offences, courts have the discretion to impose any sentence upto the statutory maximum, depending on the nature of crime, records (character) of the accused, social and economic background of the accused person, public interest, victim impact and many other factors.

5. The offence of Murder is among the few offences that carry a mandatory death sentence as a penalty in Kenya. However, there has been a departure from this by the courts’ in this jurisdiction, arising out of the Supreme Court’s decision in the case of Francis Muruatetu & Another –vs- Republic [2017]eKLR, which recognized court sentence to be imposed for the offence of Murder should be appropriate. In this case, the Supreme Court found that the mandatory nature of the penalty of death as provided for under Section 204 of the Penal Code was unconstitutional in the sense that whether or not one is convicted, they should be heard. The Supreme Court felt that a person facing the death sentence deserves to be heard in mitigation as an important cogment element of fair trial because of the finality of the sentence. The Supreme Court then proceeded to state:-“We now lay to rest the quagmire that has plagued the court with regard to the mandatory nature of Section 204 of the Penal Code. We do this by determining that any court dealing with the offence of Murder is allowed to exercise judicial discretion by considering any mitigating factors in sentencing an accused person charged with and found guilty of that offence. To do otherwise, will render a trial with the resulting sentence under Section 204 of the Penal Codeunfair thereby conflicting with Articles 25(c), 28, 48 and 50(1) and (2) of the Constitution.

6. It is in compliance with this that this Court called for a Pre-sentence Report on the accused person, which has been presented to court. From the report, Probation Officer has given their view of each on the circumstances of the offence, the accused person’s social and economic status and the victim impact statement and community.

7. According to the counsel for the State, M/S Valerie, the accused is a first offender. In mitigation, it was stated by the defence counsel, M/S Okumu that the court takes into consideration that the accused person has been in custody since 2015 and was convicted on March 20, 2020. She stated that the accused is a first offender and regrets the offence. Counsel also pointed out that the accused person has been presented as a man of good conduct who has lived peacefully with his neighbours. It is contended that he is a father of six (6) children who now live with their grandmother as the wife ran away when he was incarcerated. The children are said to have dropped out of school. The accused person, M/S Okumu stated is hardworking and the community is positive that he will be re-integrated back. She urged that the accused person be considered for a non-custodial sentence.

8. As captured in the Judiciary Sentencing Policy Guidelinesat Page 15, the objectives of sentencing 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 offence.

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.

9. On whether to impose a custodial or non-custodial sentence, the court ought to take into account the following factors:-a.Gravity of the offenceb.Criminal history of the offender.c.Character of the offender.d.Protection of the community.e.Offender’s responsibility to the third parties.f.Children in conflict with the law.

10. In the Francis Muruateru case, the guidelines were amended to include:-a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offender in response to gender-based violence;f.The possibility of reform and social re-adaptation of the offender;g.Any other factor that the court considers relevant.

11. In the instant case, the accused and the deceased were neighbours and it is unknown why he murdered her in the manner he did. It is also of worth-note that the deceased’s life was cut short in her prime age.

12. I have taken into account the circumstances under which the offence was committed, the records of the accused person, mitigation statement alongside the recommendation by the Probation Officer and proportionality doctrine. It is my considered opinion that a sentence that achieves retribution, deterrence and rehabilitation be meted out.

13. I thus sentence that the accused person to serve ten (10) years imprisonment. The accused person has a right of appeal both on the sentence and sentence while the State has the right of appeal on the sentence.

14It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS …3RD … DAY OF …NOVEMBER,… 2022. D.O CHEPKWONYJUDGEIn the presence of:M/S Okumu counsel for the AccusedM/S Valerie counsel for StateAccused - presentCourt Assistant - Gitonga