https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12366

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. E070 OF 2018** **REPUBLIC…….………………………………..……………………,,.…………PROSECUTION** **VERSUS** **SUSY MAKONJO MUSA……………………………….……..…………..…………ACCUSED** **RULING ON SENTENCING** 1. The Accused herein was found guilty and convicted by this court on the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in the Judgement that was delivered herein on 7th May, 2026. The case is now before this court for sentencing. 1. The Supreme Court in **Francis Karioko Muruatetu & Another vs Republic, Petition No. 15 of 2015**, looked into such relevant factors that should guide sentencing, thus: - “…the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge: 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 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. 1. The Court has discretion in sentencing which must be exercised judiciously while considering any relevant facts on a case-to-case basis. In **Benard Kimani Vs Republic (2002) eKLR** the Court of Appeal inter alia stated that: ***“It is now settled law, following several authorities by this Court and the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case.”*** 1. A person convicted of the offence of murder can face the severest of punishment which is a death sentence as provided under Section 204 of the Penal Code. Nonetheless, the Court has discretion to make any other sentence depending on the cirsumstances surrounding the commission of the offence and the accused mitigation. 2. This Court has received and considered the pre-sentencing report dated 27th July,2026. The presentence report says, the Accused herein is 38 years old who is a third born among nine siblings who have maintained close family ties. Her biological mother is still alive. 3. To her family, the offender is known to be a hardworking, responsible and respectful person whom they never anticipated that she will find herself in the circumstances she is in at this moment. The family indicated willingness to support the offender upon release and urged the court to consider the welfare of the offender’s minor children who at the moment are under the care of their elderly paternal grandmother who is of advanced age and deteriorating health. 4. The presentence report further says that the offender comes from a stable, identifiable and supportive family with a fixed place of abode. 5. On her personal life history, it is noted that the offender attended school to secondary level and registered an average performance. She was previously involved in informal teaching at the primary school level as an untrained teacher. Her marriage with the Deceased herein was a second marriage blessed with three minors B.K., I.M., and D.J. aged 14 years, 11 years and 9 years old respectively. The three minor are still schooling. It is further noted that the offender professes Christian faith as member of the SDA church. 6. Notably, the Accused maintains that she is not responsible for the death of the deceased herein despite the conviction. 7. On the impact of the loss of life herein, it is noted that the deceased’s family continues to mourn the loss of their loved one and pray justice to be served. 8. What keeps coming up in the report is the concern over the welfare of three minors whose needs are not optimally met. 9. From the community and local administration, it is gathered that the community is not ready to receive the offender for the unfortunate incident is still lingers in the minds of many. They cry for justice to be served while considering all the parties affected including the welfare of the surviving children. 10. This court has factored in all the above. A life was lost, the offender is still in denial despite the court finding her guilty of the offence of murder, the family of the deceased and the community at large is still suffering from the incident and the after-effects to date and yet there are minors whose welfare should also be factored in. The court has to balance all this and serve justice in this case. 11. Considering the seriousness of the offence of murder, the court is inclined to prescribe a custodial sentence for the offender herein with the hopes that while serving the sentence she will come to face the reality of the seriousness of the offence committed, be remorseful and be reformed. The custodial sentencing shall also serve to deter the offender and any other person from committing crimes. There is no history of previous convictions for this offender, it is therefore presumed that she is a first-time offender. 12. On the welfare of the three minors, the court notes the two families that is to say their paternal and maternal sides are able and willing to offer support to the minors in the meantime. The court encourages the two families to co-operate and do that which is necessarily to support the minors in meeting their nutritional, shelter, clothing, health and educational needs while the Accused shall be in custody. 13. All considered, this court sentence the accused to serve 30 years imprisonment. She shamelessly 14. Accordingly; 15. The Accused shall serve a sentence of 30 years imprisonment less the days spent in custody during the trial and sentencing.. 16. Right of Appeal 14 days explained. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 28th DAY OF JULY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Velma/Zilda