https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7336

Republic v Nyakaro (Criminal Case E015 of 2023) [2026] KEHC 7336 (KLR) (26 May 2026) (Sentence) Neutral citation: [2026] KEHC 7336 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Case E015 of 2023 DKN Magare, J May 26, 2026 Between Republic Prosecution and Adrian Muguiyi Nyakaro Accused Sentence 1.The matter was concluded by way of plea bargain. The appellant pleaded guilty to the offence of murder, contrary to section 203 as read with section 204 of the Penal Code. The particulars were that Adrian Muguiyi Nyakaro, on 3.10.2023 at Endarasha town, Kieni West Subcounty within Nyeri County murdered Esther Wanjiru. 2.The accused entered into a plea bargain agreement. The court took him through Section 137F of the Criminal Procedure Code. The said section provides as follows:(1)Before the court records a plea agreement, the accused person shall be placed under oath and the court shall address the accused person personally in court, and shall inform the accused person of, and determine that the accused person understands—(a)the right to—i.plead not guilty, or having already so pleaded, to persist in that plea;ii.be presumed innocent until proved guilty;iii.remain silent and not to testify during the proceedings;iv.not being compelled to give self-incriminating evidence;v.a full trial;vi.be represented by a legal representative of his own choice, and where necessary, havevii.the court appoint a legal representative;viii.examine in person or by his legal representative the witnesses called by theix.prosecution before the court and to obtain the attendance and carry out thex.examination of witnesses to testify on his behalf before the court on the samexi.conditions as those applying to witnesses called by the prosecution;(b)that by accepting the plea agreement, he is waiving his right to a full trial;(c)the nature of the charge he is pleading to;(d)any maximum possible penalty, including imprisonment, fine, community service order, probation or conditional or unconditional discharge;(e)any mandatory minimum penalty;(f)any applicable forfeiture;(g)the court’s authority to order compensation under section 175(2)(b), restitution under section 177, or both;(h)that by entering into a plea agreement, he is waiving the right to appeal except as to the extent or legality of sentence;(i)the prosecution’s right, in the case of prosecution for perjury or false statement, to use against the accused any statement that the accused gives in the agreement.(2)The prosecutor shall lay before the court the factual basis of a plea agreement and the court shall determine and be satisfied that there exists a factual basis of the plea agreement. 3.The accused confirmed that he understood that the offense carried a death penalty and he had not been promised any sentence. The court accordingly read the information to the accused who pleaded guilty. The Plea Agreement was adopted, and the same was read to the accused, who confirmed the contents and signatures, both his and that of his advocate. The court convicted him on his own plea of guilty. Facts were narrated and exhibits produced. 4.The brief facts were that on 03.10.2023 at Endarasha town the accused went to a bar at Digital Safi. The convict visited the appellant at her work place and spent a night at her house. At about 7 am, there was commotion in the house where the deceased was begging the accused not to beat her. A while later the accused left the room for the deceased to go back to her duties. 5.Later the convict confronted the deceased in the bar and they proceeded to the house. No sooner the house closed than confrontations were heard and the deceased was calling for help. 6.When a neighbour tried to access the house, it was locked from inside. The deceased left the house in bloodied clothes and escaped the premises after fatally wounding the deceased. The deceased was rushed to the nearest hospital but she succumbed to the injuries. The two were in a romantic relationship. The deceased died from hemorrhage due to stab wound on the left side of the neck. A blood-stained knife was retrieved, together with other exhibits. 7.There was examination of exhibits and report of Government Analysts produced. Post-mortem was carried out on the deceased on 6.10.2023. 8.The prosecution produced the following documents:i.Psychiatric report of the accused dated 12th October, 2023ii.Post mortem report dated 6th October, 2023iii.Sketch map of the murder sceneiv.Black and white jacket with blood stainsv.Black T-shirt with blood stainsvi.One brown shoe with blood stainsvii.A black handle knife with blood stainsviii.A pink bed sheet with blood stains 9.The accused confirmed the details of the facts as true and correct. The court entered a plea of guilty. The accused was convicted on his own plea of guilty. 10.The appellant mitigated that he is remorseful and had reflected on his action. He is 32 years old. He regretted the events leading to loss of life. He indicated that he was a first offender. He is single, taking care of an 89 year old grandmother. He also had siblings. He stated that the deceased had a child and he was willing to take care of. 11.PACS filed a report. It was not favourable. The convict is a 32-year-old. The accused was said to be remorseful. His upbringing was blamed. 12.The matter is now fixed for sentencing. It is understood that sentence is a matter that rests in the discretion of the trial court. The Court of Appeal, on its part, in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by 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. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist. 13.In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)” 14.The Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, pronounced itself on this issue as follows:-“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.” 4.In Hillary Kipkirui Mutai v Republic [2022] eKLR it was held that:9.Sentencing is an important aspect of the administration of justice. Noting that sentencing is based on a judicial officer’s discretion, this Court must be careful not to interfere with such a decision, unless it is demonstrated that the sentence was manifestly excessive, was illegal, improper or founded based on misrepresentation of material facts. 15.In deciding on sentence, the court is bound by precedent and the applicable statute and guided by sentencing guidelines. The applicable statute is section 203, as read with section 204 of the Penal Code. It provides as follows:203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 16.The sentence for the offence of murder is provided under section 204 as follows:204.Any person convicted of murder shall be sentenced to death. 17.The sentence for murder was addressed succinctly in the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR), as follows:65.A generous and purposive interpretation is to be given to constitutional provisions that protect human rights. This court must give life and meaning to the Bill of Rights enshrined in the Constitution. It is trite that the Constitution is the Supreme law, and all legislation must conform with it.66.It is not in dispute that article 26(3) of the Constitution permits the deprivation of life within the confines of the law. We are unconvinced that the wording of that article permits the mandatory death sentence. The pronouncement of a death sentence upon conviction is therefore permissible only if there has been a fair trial, which is a non-derogable right. A fair hearing as enshrined in article 50(1) of the Constitution must be read to mean a hearing of both sides. A murder convict whose mitigation circumstances cannot be taken into account due to the mandatory nature of the death sentence cannot be said to have been accorded a fair hearing.67.It is to be noted that the mandatory nature of the death sentence provided for under section 204 of the Penal Code long predates any international agreements for the protection of Human Rights. Notably too, as contended by counsel for the petitioners, the respondents and the five amici curiae, it is indeed a colonial relic that has no place in Kenya today. Whereas it is the duty of Parliament to make laws, it is the duty of this court to evaluate, without fear or favour, whether the laws passed by Parliament contravene the Constitution.68.Once again we agree and affirm the statement by the Court of Appeal in Mutiso at paragraph 14 that:As will be seen shortly, and indeed it is axiomatic, human society is constantly evolving and therefore the law, which all civilized societies must live under, must evolve in tandem. A law that is caught up in a time warp would soon find itself irrelevant and would be swept into the dustbins of history. (Emphasis is ours).69.Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment.a)The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26(3) of the Constitution. 18.In determining culpability, the court is guided by the circumstances of the offense, which may justify either reducing or increasing the sentence. The offense was motivated by or did it demonstrate hostility based on the age of the victim? The post-mortem report showed that she was 28 years old. This was a gender based violence case. There was intersectionality between gender, and vulnerability. The deceased left 1 child. This was senseless killing started for whole two days. The accused ran away after the offence. 19.The offense did not require a high level of planning. However, excessive force was used. This was also in the process of committing another crime, that of robbery. 20.The accused accessed the deceased by virtue of being a boyfriend. On the other hand, the degree of harm is also to be considered. The victim suffered fatal injuries. Serious injuries were inflicted on the victim. The accused had no prior convictions or other relevant convictions. He has demonstrated remorse, though in between the case, not at the onset. There is no evidence of the accused’s good character or exemplary conduct. However, the remorse is acknowledged. There was, however, substantial physical suffering caused to the deceased. 21.Having considered the foregoing factors, especially that the accused ran away when the offence was committed and left the deceased tabled to death, a high sentence is to be considered. However, given the circumstances of the case and that he has now agreed to atone for his sins, a sentence of 40 years will suffice. Order 22.I therefore make the following orders: -a.The accused is hereby sentenced to 40 years' imprisonment. The same shall commence on the date of arrest.b.The right of appeal of 14 days as to the extent or legality of the sentence, explained in Kiswahili.c.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 26TH DAY OF MAY, 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Mr. Kihara for the StateMr. Karanja Maina for the AccusedAccused presentCourt Assistant – Martin