[2022] KEHC 1659 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

CRIMINAL CASE NO. 99 0F 2015

REPUBLIC .............................................PROSECUTOR

VERSUS

MICHAEL WAITHAKA Alias LEBE......1ST ACCUSED

JEFF OCHIENG AYOO............................2ND ACCUSED

SENTENCE

1. The convicts were on 13th day of May 2021 found guilty and convicted of the murder of ALOISE OBONG ODENY on the 19th day of march 2014, after a trial which commenced on 19th day of October 2015.

2. The court is now called upon to pass an appropriate and just sentence herein.

3. In this undertaking, the first port of call is section 204 of the penal code as read with the supreme court of Kenya decision in FRANCIS KARIOKO MURUATETU &ANOTHER V REPUBLIC AND OTHERS [2017] e KLR where while upholding the constitutionality of the death sentence stated that it was not mandatory and that the Judges had discretion to pass any appropriate sentence based upon the fact of each particular case, with the death sentence being the discretionary maximum.

4. The court at paragraph 71 of their judgement stated the factors which the court has to consider in this undertaking to be among others:

a. The age of the offender

b. Whether he/she is a first offender

c. Whether the offender pleaded guilty

d. The character and record of the offender

e. Commission of the offence in response to gender based violence

f. Remorsefulness of the offender

g. The possibility of reform and social re-adaptation of the offender

h. Any other factor that the court considers relevant.

5. In compliance with the Judiciary Sentencing Policy Guidelines, the court called for presentencing report and allowed the convicts to offer their mitigations as the supreme court in MURUATETU (supra) correctly stated that if a judge does not have discretion to take into account mitigating circumstances, it is possible to overlook some personal history and circumstances of the offender which may make the sentence wholly disproportionate to the accused culpability.

PRE-SENTENCING REPORT

6. On MICHAEL WAITHAKA alias LEBA, it was stated that his mother died in the year 2005 and his maternal Grand Mother took over parental responsibility and was living with her at Huruma as at the time of the commission of the offence. He sat for his KCPE examination in the year 2006 but did not proceed to secondary school and enrolled for a mechanic course in the year 2009-2010, which he did not complete. At the time of the offence he was a Boda Boda rider, married with two children aged seven and nine years respectively.

7. On the circumstances of the offence, it was stated that, the deceased was the father of one of his best friends in the area and that he participated in stoning him for interfering with their mission to hold into account one Peter Njorige who has squandered his money from a youth housing project in the area. It was not his intention to kill the deceased, whose mission was only to pacify the waring youths.

8. On the family attitude, the convict’s grandmother confirmed that he was of good character and was willing to take him on and support his integration into society and so as to take cate of his young family.

9. On the view of the victim’s family; it was stated that the same was a father of five children and was the sole bread winner for his family.

It was stated that the family had not yet overcome the devastating loss and were bitter and angry at the convicts and were not ready for any possible reconciliation.

10. On the Community view; it was stated that the convict was known to be associated with criminal gangs in the area who was engaged in robbery with violence and muggings in the area. They sought for deterrence sentence but hoped that he used his time in custody for behaviour change.

11. In recommendation, it was stated that the accused had high risk of recidivism owing to his past engagement in violence activities but should he be considered for non-custodial sentence, then he should be on probation for intensive supervision and rehabilitation programs geared to addressing his procriminality identity association with peers with criminal attitude and counselling on drug and substance.

12. On JEFFE OCHIENG OYOO it was stated that he was brought up by a single mother with the assistance of his grandmother after his mother died in the year 2002. Upon the arrest of the accused his grandmother suffered depression leading to her death in the year 2021. The accused went to school up to form two but dropped out due to lack of school fee and joined the garbage collection youths in the area. He was married at the time of the offence with one child, but upon his arrest the wife moved on to anew marriage.

13. On the circumstances of the offence, he denied committing the offence and stated that on the material day while selling water, he heard a commission and ran towards the area and found a group of people gathered around the deceased, who was explaining to one Pastor Ben that he had been accosted by a group of young men who had destroyed his business and at that point someone in the crowd pelted the deceased with a stone on the head.

14. He pleaded for mercy stating that he had been in custody for a period of six years during which period of time he had undertaken self-improvement programs.

His sister pleaded for a second chance on his behalf stating that he was other only relative she had remaining in the world.

15. On the victim impact statement, it was stated that the deceased was earning his livelihood as a mental fabricator and was the sole breadwinner for his family and his wife who was a house wife had been thrusted into unfamiliar position of providing for his family. The family had no come to terms with his loss and were not willing to forgive the convict. The community on the other hand was stated to had reported that the convict was a known criminal in the area.

16. On recommendation, it was stated that the offender enjoys the support of his only relative, his sister who looks upon him as a father figure. he was assessed as of medium risk of recidivism.

MITIGATION

17. On behalf of the 1st accused Mr, Mburu submitted in mitigation that the same was married with two kids confirming the content of the presentencing report and that his wife was jobless and therefore sought for a sentence which will enable the accused to be reunited with his family. It was contended that he was a first offender and that the court should take into account the pre-conviction period in custody while passing sentence.

18. The second accused in the absence of his Advocate, Mrs Kinyori stated in mitigation that he was remorseful for what happened, he stated that while in custody his grandmother dead and there was no body left to take care of his child, he sought a second chance to enable him go back to society so as to be role model to his sin and other young people.

DETERMINATION

19. Sentencing objectives as stated by the Judiciary Sentencing Policy Guidelines and restated by the Supreme Court in MURUATETU (supra) are as follows:- [92]The 2016 Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of sentencing at page 15, paragraph 4. 1 as follows:

“Sentences are imposed to meet the following objectives:

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 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. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.

5. Community protection: To protect the community by incapacitating the offender.

6. Denunciation: To communicate the community’s condemnation of the criminal conduct.”

The sentencing policy states at paragraph 4. 2 that when carrying out sentencing all these objectives are geared to in totality, though in some instances some of the sentences may be in conflict.””

20. While passing out the sentence the court must always have the above objectives in mind and must try as much as possible in the circumstances of each case and in our case without the benefit as scientific confirm to give out a sentence which is best suited to the accused person with these objectives in mind.

I have had this to say on the consideration by the court in passing out a sentence deciding whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -

a)Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.

b)Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.

c)Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.

d)Protection of the community: - where the offender is likely to pose a threat to the community.

e)Offenders responsibility to third parties: - where there are people depending on the offender.

f)Children in conflict with the law: - non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate. See R.vs. JOSEPH MARANGU [2021] e KLR.

21. In this case both convicts have been in custody since 2015, the 1st convict admits his involvement in the crime with others not before the court and of great significance for the purposes of this sentence does not mention the 2nd convict, who on the other had maintained his innocence and states that he was a victim of circumstances, having found himself at the spot where the victim was.

22. In passing the sentence herein, I have taken into account the 1st accused mitigation, that the victim whom the deceased thought they were robbing had defrauded them of some hard earned money, I have also taken into account the ages of the accused persons at the time of the commission of the offence and take the view that they belonged to the hustler nation who were victims of their upbringing and to that extent the court must let mercy and justice kiss each other for their benefit.

23. Being a live to the fact that the first accused had owned up to the commission of the offence I will therefore sentence the same to a term of ten (10) years with effect from 19th May 2015 when he first appeared in court having taken into account the provisions of section 333(2) of the Criminal Procedure Code of which the last two (2) years thereof shall be served on probation for further rehabilitation and resettlement of the same into society.

24. On the second accused having taken into account his mitigation and the pre-sentence report and the fact that this court has found him guilty in spite of his claim of innocence I have sentence the same to a term of six (6) years with effect from 19th May 2015 under the provision of section 333(2) of CPC considered served.

25. In the final analysis I make the following orders:-

A. 1st accused is sentence to a ten (10) year period to be served as follows: eight (8) years in custody with effect from 19th may 2015 with the last two (2) years thereof on probation.

B. 2nd Accused is sentence to six (6) years imprisonment with effect from the 19th May 2015 considered served.

C. Both accused persons are entitled to right of appeal both on conviction and sentence while the state is entitled to right of appeal on sentence.

D. And it is ordered.

SIGNED DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MARCH, 2022

J. WAKIAGA

JUDGE