[2020] KEHC 1619 (KLR)
The court considered the seriousness of the offence—murder of a spouse after twenty years of marriage and the impact on the children, who are now in the care of the deceased's mother. The court found that a non-custodial sentence would be inappropriate given the gravity of the crime and the ongoing pain to the...
Source-derived case information.
- Citation
- [2020] KEHC 1619 (KLR)
- Parties
- Respondent: Republic; Defendant: Mwanzia Musembi
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 200 of 2017
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- accused sentenced to eight years imprisonment
- Legal Topics
- Murder, Sentencing, Mitigation, Penal Code Section 203, Penal Code Section 204
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Mwanzia Musembi
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused should be sentenced to a custodial or non-custodial sentence for the offence of murder.
- 2 What weight should be given to the accused's mitigation and time already served in custody.
Ratio Decidendi
The court considered the seriousness of the offence—murder of a spouse after twenty years of marriage and the impact on the children, who are now in the care of the deceased's mother. The court found that a non-custodial sentence would be inappropriate given the gravity of the crime and the ongoing pain to the family. However, the court took into account the accused's mitigation, including his status as a family man, and the period already spent in custody (four years and four months). Balancing these factors, the court determined that an eight-year custodial sentence was just and proportionate under the circumstances.
Court Disposition
accused sentenced to eight years imprisonment
Orders
- The accused is sentenced to serve eight years imprisonment.
- Right of appeal explained.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HIGH COURT CRIMINAL CASE NO. 200 OF 2017
FORMERLY HCCRC 28 OF 2016
REPUBLIC.........................................................PROSECUTION
-VERSUS-
MWANZIA MUSEMBI .................................................ACCUSED
RULING ON SENTENCE
Mwanzia Musembithe accused was charged and convicted of murder contrary to section 203 as read with section 204 of the Penal Code. There were no records from the prosecution on the accused’s past behavior. In mitigation he was said to be a family man with seven (7) children. He pleaded for leniency from the court.
A pre-sentencing report presented to court shows that the deceased’s mother is still very bitter at what the accused did to her daughter. The accused and deceased had been married for 20 years.
What the accused did to his wife of twenty (20) years with several children is unthinkable. There was no man in their house that night as alleged by him.
The children of the marriage are with the deceased’s mother and are school going.
Releasing the accused on a non-custodial sentence at this moment would be disastrous. The court has not been told what the children’s reaction to the happenings is. It is a painful experience for the children and this cannot be taken lightly.
I have however taken note of his mitigation, and the circumstances of the offence. I have also noted that the accused has been in prison custody since 12th July 2016 which is four (4) years and four (4) months which I am taking into account.
The accused is hereby sentenced to serve eight (8) years imprisonment.
Right of appeal explained.
Orders accordingly.
Delivered, signed & dated this 10th day of November 2020, in open court at Makueni.
……………………………….
H. I. Ong’udi
Judge