https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7423

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL DIVISION** **CRIMINAL CASE NO. 37 OF 2018** **REPUBLIC..…….…............................................................PROSECUTOR** **VERSUS** **AMOS MUIGAI MWANGI...................................................1ST ACCUSED** **ALEX MUSEMBI MUSYOKA………………………………….…..2ND ACCUSED** **SENTENCE** 1. Both accused persons were adjudged guilty of murder in a judgment delivered on 4th March 2026. 2. On 13th June 2018, *Doreen Kinya* (hereafter *the deceased*) was travelling in matatu registration number KCC 021A operated by Zamzam 45 Limited along the Githurai route. At the Queen of Apostles Church on Thika Road, she fell out of the speeding vehicle and died. 3. The death was caused by the deliberate conduct of the two accused persons who were the driver and conductor respectively. The court found that *“by continuing to speed when the passenger door was open, they both knew or ought to have known that any passenger attempting to alight would suffer grievous harm or even death. It was grossly negligent and reckless; a total disregard for the safety and life of the deceased”.* 4. I have taken into account the address by the learned prosecution counsel, *Ms. Kigira,* on sentencing as well as the mitigation tendered by the accused through their learned counsel, *Mr. Ong’anya*. 5. *Ms. Kigira* summed up the conduct of the accused as “callous” and called for a deterrent custodial sentence. 6. *Mr. Ong’anya* on the other hand submitted that the accused *“are family leaders with wives and children as captured fully in the pre-sentence reports”.* He added that their wives and young children rely fully on the accused. In addition, the 2nd accused is aged 34 and his mother is ailing. As the last born, he *“deserves a second opportunity at life”.* Regarding the 1st accused, counsel submitted that he has a hearing ailment that has kept deteriorating. 7. He submitted further that the accused have co-operated with the criminal justice system and faithfully attended court. He stated that they were in remand custody from the date of their arrest in June 2018 to December 2019 a period of approximately 1½ years. In a synopsis, he pleaded with the court to temper justice with mercy 8. I have then considered the *pre-sentencing reports* for each of the accused persons all dated 9th April 2026 under the hand of *Ms. Mercy Kanyangi*, Senior Probation Officer, Nairobi. 9. Regarding the 1st accused, the social report observes that *“the absence of sufficient acknowledgment of wrong-doing undermines the prospects for effective rehabilitation if left unaddressed”*. She thus recommends a custodial sentence to serve as a *“punishment, denunciation and general deterrence”.* With respect to the 2nd accused the social report recommends a custodial sentence in view of his lack of remorse and failure to accept responsibility. 10. The views of the victim’s family are well captured in the social reports. The deceased was a college student and 21 years at the time of her death. The report underscores the far reaching consequences of the offence which led to *“severe emotional and psychological”* impact on the family particularly the health of her parents who looked out to the deceased with promise of a role model. It is also noted that no effort has been made by the accused or their families towards reconciliation or settlement. 11. Murder is a grave felony that attracts the death penalty. However, following the Supreme Court decision in ***Francis Karioko Muruatetu & another v Republic****,* Consolidated Petitions Nos. 15 & 16 of 2015 [2017] eKLR, the *mandatory* nature of the death sentence as provided for under section 204 of the **Penal Code** was declared unconstitutional. 12. It bears repeating that the decision did *not* outlaw the death penalty, but it left the court with discretion to impose a lighter sentence.Sentence *should be commensurate to the moral blameworthiness of the offender* but also guided by the *nature and gravity of crime*. 13. I have considered that both accused are first offenders. But I find that justice in this case calls for a custodial sentence. I sentence each of the accused to *ten (10) years* imprisonment. However, and in accordance with section 333 (2) of the **Criminal Procedure Code**, the period spent in remand custody from the date of their arrest (but excluding such period when they were out on bail) shall be deducted from the sentence. 14. The accused have a right of appeal to the Court of Appeal within 14 days and as per the Rules of that Court. A copy of the proceedings, judgment and sentence shall be supplied to them immediately. It is so ordered. **DATED, SIGNED** and **DELIVERED** at **NAIROBI** this 2nd day of June 2026. **KANYI KIMONDO** **JUDGE** **Ruling read virtually on *Microsoft Teams* in the presence of: -** Both accused persons. Mr. Ong’anya instructed by Ong’anya Ombo Advocates for the accused. Mr. E. Ombuna, Court Assistant.