[2021] KEHC 8262 (KLR)
The court found that the accused, a first offender, killed the deceased in a brutal and merciless manner without any evidence of provocation. While the mitigation and period in custody were considered, the act was unjustified and did not warrant the death penalty but required a severe custodial sentence. The...
Source-derived case information.
- Citation
- [2021] KEHC 8262 (KLR)
- Parties
- Applicant: Republic; Defendant: Musee Kiema
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 2 of 2015
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted and sentenced
- Judges
- CM Kariuki
- Legal Topics
- Murder, Sentencing Guidelines, Mitigation, First Offender, Provocation, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Musee Kiema
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused is guilty of murder under section 203 as read with section 204 of the Penal Code.
- 2 What is the appropriate sentence for the accused considering mitigation, lack of provocation, and period in custody.
Ratio Decidendi
The court found that the accused, a first offender, killed the deceased in a brutal and merciless manner without any evidence of provocation. While the mitigation and period in custody were considered, the act was unjustified and did not warrant the death penalty but required a severe custodial sentence. The objectives of sentencing as outlined in the Sentencing Policy Guidelines were applied, balancing retribution, deterrence, and rehabilitation. Consequently, the court imposed a sentence of 40 years imprisonment effective from the date of arrest.
Court Disposition
convicted and sentenced
Orders
- The accused is sentenced to 40 years imprisonment with effect from 9/3/2015.
- Right of appeal explained.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO. 2 OF 2015
REPUBLIC.............................................PROSECUTION
VERSUS
MUSEE KIEMA................................................ACCUSED
SENTENCING ORDER
1. The accused stands convicted of offence of murder under section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya.
2. There were no previous records hence he is to be treated as a first offender. He was afforded a chance to mitigate via his advocate and he stated to the effect that:
He is remorseful and regret death of the deceased. He says the dispute arose out of land matters. He has been in custody for 6 yrs.
3. The court notes that the accused armed himself with arrows and bow and brutally killed deceased on the basis of what he alleged to be an abuse she had hurled at him.
4. 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:
I. Retribution: To punish the offender for his/her criminal conduct in a just manner.
II. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
III. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.
IV. 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.
V. Community protection: To protect the community by incapacitating the offender.
VI. Denunciation: To communicate the community’s condemnation of the criminal conduct.”
5. In the case of Nicholas Mukila Ndetei v Republic [2019] eKLR the held that, “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.”
6. I have looked at the mitigation tendered and evidence on record plus the fact that accused is a first offender and the period he has been in custoday. I find that, the reason as to why he killed her is totally unjustified as he never established any evidence of provocation. The act of killing was grisly and totally merciless. However the circumstances of killing does not warrant death sentence but severe custodial sentence.
7. Thus the court sentences accused to 40 years imprisonment with effect from 9/3/2015.
8. Right of appeal explained.
DELIVERED AND SIGNED AT GARISSA THIS 24TH DAY OF MARCH, 2021.
........................
C. KARIUKI
JUDGE