[2022] KEHC 3248 (KLR)

Republic v Murimi & 5 others (Criminal Case 7 of 2017) [2022] KEHC 3248 (KLR) (7 July 2022) (Sentence)

Neutral citation: [2022] KEHC 3248 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 7 of 2017

EM Muriithi, J

July 7, 2022

Between

Republic

Prosecution

and

Henry Musa Murimi

1st Accused

Stanley Gichunge Kitheka

2nd Accused

M’Kailibi Kailibi

3rd Accused

Daniel Karatu

4th Accused

Gedion Kingori

5th Accused

Ibrahim Meeme Kiobe

6th Accused

Sentence

1. The accused persons Nos. 1, 2, 4, 5 and 6 were found guilty under respective counts of two counts of murder as follows:1. For the offence under Count I of the Information dated 16th January 2017, the 2nd, 5th and 6th Accused persons, namely Stanley Gichunge Kitheka, Gedion Kingori Alias Sarah and Ibrahim Kiobe, for the offence of murder contrary to section 203 as read with 204 of the Penal Code; and2. For the Offence under Count No. II of the Information dated 16th January 2017, Accused persons Nos. 1, 2, 4, and 5, namely, Henry Musa Murimi, Stanley Gichunge Kitheka, Daniel Karatu, Gedion Kingori Alias Sarah for the offence of murder c/s 203 as read with 204 of the Penal Code.

2. At the sentencing hearing, Counsel for the convicted accused persons made oral submissions in mitigation for the accused persons as shown in the record of proceedings of 17/5/2022, as follows:“DPPThe 1st, 2nd, and 4th accused are first offendersThe 5th and 6th accused have a previous record in Criminal Case No. HCCR 23 of 2014 where both the accused were convicted from offence of murder and sentenced to death before Onginjo, J.Ms NelimaOn behalf of the 1st accused. He is a first offender. The 1st accused is 53 years. He has 4 children and wife. Before arrest in 2008. He was providing for his family. The accused is remorseful. He says the court to take into account the period in custody of 14 years since arrest in 2008. Prosecution in the case was delayed on account of the declaration of instruction and they had to take place again. The accused his even sick and the court has had to make order to hospital. He has TB and stomach ailment. We urge the court to consider the circumstances that the deceased died out of an arrow. It was only one. The issue that led to the death arose out of land dispute which did not involve the deceased but a violation of the anger. The dispute was between PW1 and family of accused No. 3 who was acquitted. We ask the court to take into account the period he was in custody. He has certificates on courses in prison that he has been rehabilitated. I have some certificates. He is a changed man and he may be rehabilitated into society.Mr. J. Mutuma for 2nd and 4th.For the 2nd accused, he his remorseful for what happened. We wish the court to note that 2nd accused is father of 2 child, 16 and 18 years and a wife all who are family dependent on him as sole provider.Both accused have been in custody for 14 years. The children last saw them at 2 and 4 years old. We urge the court to consider the period of time in custody. The 2nd accused has attained certificate qualifying to become a Pastor. He has totally reformed. I present certificates from prison authorities.On behalf of 4th Accused. He is remorseful about his action. He was found culpable in respect of 1st count by the court. He is a father of 3 children aged between 17, 21 and 25 with 1 wife who was struggling with the 3 children as 4th accused was a sole provider all who still need fatherly care. 4th accused has also attained pastoral certificates like the 2nd accused. He has a sworn affidavit by one of the pastors. We wish to present the certificates on behalf of the 4th accused.We pray for a non-custodial sentence considering the time the accused have spent in custody. A provision sentences is one of correction not first punitive. The accused have been convicted and they should be allowed to make their contribution to the society as pastor. The witness statement of Investigating Officer, we pray that the court exercises leniency, the 2nd and 4th are first offenders as confirmed by DPP.Ms. Nelima for 5th and 6th accusedThe accused had another case before the High Court. Sentence of death. They have filed an appeal at Nyeri Court of Appeal. The 5th accused is 52 years, father of 2 children. Before arrest in 2010 he was the one who was taking care of them. He has been in custody for 12 years. He says that his children are out of school as he was the bread winner and he has no one to take case of them. He is remorseful and we pray for the court to consider the time in custody.On behalf of 6th accused, he is 54 years. He has 4 children and a wife. He has been in custody for about 10 years. He is remorseful, within the period he has been in custody he has been rehabilitated. The delay in the hearing of the case was not his fault. He prays for leniency.”

3. In its Judgment, the court concluded that the murders were organised crime perpetrated by the accused as follows:“Ultimately, the diagnosis of the Court as to the anatomy of the attack on PW3 and his relations was the scorching of their stores/houses at their shambas and killing their employees deployed therein in an apparently well organised plan executed about 6. 00 - 7. 00pm on 16th September 2008 at different locations one after the other. Suspicion (although suspicion no matter how strong cannot found a conviction as held in Sawe v. R [2003] KLR 364) that the attackers were acting in common design with the 3rd Accused who had a civil dispute over a parcel of land with the PW3 and, consequently, a motive for the attack and or that Accused 3 may have procured, within the meaning of section 20 (3) of the Penal Code, his relatives to carry out the attacks was not proved. It was proved, however, that the Accused persons 1, 2, 4, 5 and 6 were present during the attacks and the killing subject of the murder charges in Count Nos. I and II in the Information dated 16/1/2017. While Accused 6 was shown to have been present in the attack subject of Count I of the Information, there was no evidence from the eye witnesses that he was part of the persons who attacked PW3’s farm, which was the subject of Count II. The accused were armed with arrows, pangas and clubs, and their intention to kill or at least cause grievous harm and commit a felony by damage to property is clear by the shooting of the deceased employees of the farm owners with arrows and burning the houses, and malice aforethought, within the meaning of section 206 (a) and (c) of the Penal Code as elaborated in Olenja, supra, is complete. Indeed, the attackers’ intention to kill may be inferred from the use of arrows on the victims. For their presence and taking part in the attacks on PW3 and his two relatives, PW4 and PW6 who testified before the Court is demonstrable evidence from which common intention is inferred, in accordance with the law. The said accused persons are, therefore, jointly guilty of the offences of murder contrary to section 203 as read with 204 of the Penal Code, on the principle of execution of common purpose under section 21 of the Penal Code, and they are convicted as charged. Accused No. 3 who was not shown to have been present at either of the two incidents subject of charges in Count I and II is acquitted on both counts.”

4. The court has considered that the prevalence of cyclical killings among communities fighting over land and resources in the area requires severe deterrent sentences. It was organised crime which must attract severe punishment for the deliberateness, scheming and cold execution of the killings. A sentence of death might have been suited for such organized multiple killings. The only ameliorating factor is the fact that it was emotionally driven by the apparent pursuit of interest in land, which is an emotive issue in the Kenya culture.

5. Some of the accused persons herein in are first offenders as urged by their Counsel, while other are on death row following conviction and sentence in Meru HCCRC No. 23 of 2014. Although, the general principle of sentencing is that it is unusual for a first offender to be sentenced to the maximum penalty prescribed for an offence (see Arissol (Josephine) v. R (1957) EA 447 and Wanjema v. R (1971) EA 493), I do not accept that being a first offender for the offence of murder ought to matter much: one murder is bad enough, and an offender need not kill again to deserve the maximum penalty!

6. However, guided by the Muruatetu decision (Francis Karioko Muruatetu & another v Republic [2017] eKLR) that the sentence of death is a maximum discretionary penalty, I consider in the circumstances of this case where the motive to kill and the emotion driving the accused to the assaults leading to the killings may have been generated by a sense of entitlement to the land in dispute, that a sentence of imprisonment for life is the appropriate penalty for all the convicted persons who were involved in this organised execution of their opponents in a land dispute. The case started in 2009 and the accused have been in custody for periods ranging between 10 - 14 years upon an order for retrial made at the point of Judgment on 31/7/2014 by the court (Lesiit, J., as she then was) on realisation that the 5th accused had been joined without taking plea, but on account of the sentence of life imprisonment nothing turns on that now.

7. The court has guardedly considered the Probation Officers Report, (as counselled by the Court of Appeal Kyalo v. R (2009) KLR 325 for Probation Officer’s Reports whose contents have been subject of comment or cross-examination by the accused), with respect to all the accused persons very adverse report of leadership or membership to a local terrorist/criminal organization.

8. The court has also considered various certificates of good conduct and pastoral vocations of some of the accused while in custody. The seriousness of the offences, as discussed above, trumps the consideration of the alleged reform sought to be demonstrated by certificates of good conduct in Prison. There is greater benefit to the society at large for the deterrence, and hopefully prevention, of organized land-dispute driven killings in the area and in the country as a whole. The court must take judicial notice, as a matter of local notoriety, of the resurgence of terror criminal gangs around the country and take deliberate penal policy to suppress them by deterrent measures.

Orders 9. Accordingly, for the reasons set above, the court makes the following orders:1. For the offence under Count I of the Information dated 16th January 2017, the offence of murder contrary to section 203 as read with 204 of the Penal Code, the Accused persons Nos. 2, 5 and 6, namely Stanley Gichunge Kitheka, Gedion Kingori Alias Sarah and Ibrahim Kiobe, are sentenced to imprisonment for life.2. For the Offence under Count No. II of the Information dated 16th January 2017, the offence of murder c/s 203 as read with 204 of the Penal Code, Accused persons Nos. 1, 2, 4, and 5, namely, Henry Musa Murimi, Stanley Gichunge Kitheka, Daniel Karatu, Gedion Kingori Alias Sarah are sentenced to serve imprisonment for life.3. Where the accused persons are convicted and sentenced under the two counts, the sentences shall needless to state be served concurrently.Order accordingly.

DATED AND DELIVERED THIS 7THDAY OF JULY 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Ms. Nandwa, Prosecution Counsel for DPP.Ms Nelima, Advocate for the 1stAccused.Mr. J. Mutuma, Advocate for the 2ndand 4thAccused.Mrs. Ntarangwi, Advocate for the 3rdAccused.Mr. Igweta, Advocate for the 5thand 6thAccused.