https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12174

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL CASE NO.33 OF 2025 REPUBLIC ………...…………………..…………..……..…..PROSECUTION SAMUEL MUTUNGA NZAU ……………..……...……..……..….ACCUSED VERSUS SENTENCE The Charge 1. SAMUEL MUTUNGA NZAU, the Accused herein, was charged with Murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the stated offence are that:- “On 18th April 2018 at Gatuanyaga Market Area, Thika East Sub-County within Kiambu County the Accused Person murdered one LYNET KENDI”. 2. The Accused pleaded not guilty and the plea was duly entered. Plea-Bargaining Agreement (PBA) 3. The Prosecution and the Defence entered into a Plea-Bargaining Agreement (PBA) dated 13th October 2025. It was signed by the Accused, Defence Counsel – Mr. Warui Mathenge, and the Prosecution Counsel – Ms. Jennifer Ndeda. Consequently, the Accused pleaded guilty to the offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The PBA HCCR. CASE NO.33 OF 202S5 RULING ON SENTENCE - Page 1 of 9 was availed in Court together with Court’s compliance form for recording the Plea Agreement and the Deceased’s post-mortem report dated 22nd April 2018. 4. After taking him through the applicable law, this Court was satisfied that the Accused Person understood his rights identified under Section 137F of the Criminal Procedure Code as signified by his signature on the Court Form. Consequently, the Plea Agreement was adopted as part of the Court Record. 5. Accordingly, the Accused Person was convicted for the offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code on his own plea of guilty. Under Section 205 of the Penal Code, the punishment for Manslaughter is imprisonment for life. Mitigation – 24 th June 2026 6. In mitigation, Mr. Mungai, Learned Defence Counsel, stated that the Accused Person is a remorseful first-offender who committed the manslaughter while under the influence of alcohol. Defence Counsel stated that the Accused Person is a family man aged 41 years, and he is a father of 3 children. 7. Mr. Mungai underscored that the incident was not pre-meditated and the Accused Person did not flee and was readily available for arrest. Defence Counsel pointed to the largely positive Probation Pre- Sentence Report as well as the Letter of Recommendation dated HCCR. CASE NO.33 OF 202S5 RULING ON SENTENCE - Page 2 of 9 30th January 2026 by Mr. Paul Kipsang – In Charge of Nairobi Remand as indicators that the Accused Person is a good candidate for reform, rehabilitation, and reintegration. 8. Defence Counsel stated that the Accused Person was arrested on 7th August 2018. Having also been in custody from then to date and continuing, Mr. Mungai concluded by proposing that the time served thus far in custody is sufficient, and prayed that the Court metes out a non-custodial sentence. Response to Mitigation 9. In response to the mitigation, the Learned Prosecution Counsel, Ms. Caroline Muriu, confirmed that the Accused Person is a first offender with no previous records. Ms. Muriu observed that by entering into a Plea Bargain at an early stage, the Accused Person had saved the Family a lengthy and emotionally draining full trial in which family members would have to testify. She further noted that the same conserved scarce judicial time and resources. 10. Ms. Muriu urged the Court to consider the circumstances of the case. The Accused Person had pleaded guilty to the manslaughter of a 15- year-old girl who was on midterm. She pointed to the victim’s family’s sentiments as captured at Page 3 of the Probation Pre-Sentence Report dated 28th June 2026 as a factor that the Court should strongly consider in arriving at a just sentence. Ms. Muriu asked for a custodial sentence in light of the circumstances of the case, age of the victim, HCCR. CASE NO.33 OF 202S5 RULING ON SENTENCE - Page 3 of 9 and impact on the victim’s family. The Prosecution concluded by recommending a sentence of 11 years in total, inclusive of the almost 8 years already served. Personal Statement in Mitigation 11. The Accused Person, in rejoinder and giving his personal statement in mitigation, stated that he had submitted two documents both dated and signed on 22nd June 2026 in his mitigation, which he had personally drafted and signed. After expressing his remorse for the offence, the Accused Person urged the Court to consider his two personal statements and to place substantial weight on the following mitigating factors:- a) He has already served 8 years in custody; b) He is a first offender; c) He is genuinely remorseful; d) As the sole breadwinner, his family is undergoing significant financial hardship; and e) His demonstrable efforts at rehabilitation and good conduct while in custody. The Probation Pre-Sentence Report (PPSR) 12. The Probation Pre-Sentence Report dated 28th June 2026 concluded by finding that the Accused Person is not suitable for a non- custodial sentence. The views of the victim’s family were recorded as being very bitter towards the Accused Person, who had snatched away a teenage girl who was the last-born of a family of four. The victim’s HCCR. CASE NO.33 OF 202S5 RULING ON SENTENCE - Page 4 of 9 sister, Purity Gacheri, recounted the extremely traumatic impact the death of their loved one had on the entire family. She stated that their mother, Gladys Kanyua Matugi, sunk into a deep state of depression and would cry every night. Purity draws a straight line between the Accused’s manslaughter of her sister and her mother’s subsequent death in 2021, which she ascribed to depression. Summary of the Facts of the case 13. The agreed facts of the case as presented by the Prosecution and accepted by the Accused Person are that the Deceased died due to asphyxiation due to strangulation and vacillation obstruction arising from traumatic neck compression consistent with homicide and sexual assault. The Deceased’s mother found her hanging from a window using a piece of cloth. 14. Investigations by the Police linked the homicide to the Accused Person, who subsequently accepted the same by pleading guilty to manslaughter. Analysis and Determination 15. The Court in this matter is guided by the provisions of the Judiciary Sentencing Policy Guidelines 2023 as amended by the directions of the Supreme Court in the case of Muruatetu & Another –vs- Republic; Katiba Institute & 5 Others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR). HCCR. CASE NO.33 OF 202S5 RULING ON SENTENCE - Page 5 of 9 16. Under Section 205 of the Penal Code, the accused is liable to face a punishment of life imprisonment. In April 2025, the Supreme Court held that a life imprisonment sentence is lawful and applicable. This was the finding in the cases of Republic –vs- Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (Ayako case) and Republic –vs- Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (Manyeso case) where it was held that only Parliament has the power to revise a sentence prescribed under a statute. 17. In light of the foregoing discussion, this Court can exercise its discretion on sentencing given the circumstances of the case. The Prosecution is opposed to a non-custodial sentence, and has recommended an 11-year sentence that runs from the date of arrest in light of the fact that the Accused Person has been in custody throughout. The Accused Person has prayed for leniency and a non- custodial sentence or in the alternative a short custodial sentence. 18. The Post-Mortem Report dated 23rd April 2018 makes clear that LYNET KENDI, the Deceased, not only lost her life but was also sexually assaulted. The Accused Person accepted this by accepting the particulars and factual basis of the offence which is Paragraph 9 of the Plea Bargain Agreement dated 13th October 2025 and the Post- Mortem Report as an Exhibit. HCCR. CASE NO.33 OF 202S5 RULING ON SENTENCE - Page 6 of 9 19. The Court notes the hugely traumatic impact and strongly negative sentiments of the Victim’s family. While the Accused Person is remorseful and accepted the manslaughter by entering into a Plea Bargain that spared the victim and the Republic a long trial; the homicide was at the higher end of manslaughter and not the lower end, and the sexual assault of the Deceased at the age of 15 years by the Accused Person within that homicide incident must also be factored in. 20. The sentence that this Court shall pronounce must therefore recognize and ‘reward’ the Plea Bargaining, consider the remorsefulness of the Convicted Offender and his demonstrated journey of rehabilitation, and provide an opportunity for the Convicted Offender to rejoin mainstream society with a significant part of his projected life expectancy remaining to be lived on one hand. 21. On the other hand, that sentence must examine the total circumstances of the offence, the young age and vulnerability of the Deceased, and consider that the Convicted Offender, while now remorseful, did not turn himself in at the material time. 22. To my mind, that fair and just sentence that strikes that balance cannot be the non-custodial or short sentence called for by the Defence, and it must be lengthier than the 11 years called for by the Prosecution. 23. I note from the records in the Court File that SAMUEL MUTUNGA NZAU was arrested on 7th June 2018 and has been in custody throughout. The dates of 7th August 2018 by Defence Counsel and 7th HCCR. CASE NO.33 OF 202S5 RULING ON SENTENCE - Page 7 of 9 August 2018 by the Accused Person are incorrect. The Statement of Inquiry and Caution dated 7th June 2018 by Inspector Polycena Mukami Miriti at Ngoliba Police Station makes clear that the Accused Person was most certainly arrested on 7th June 2018. 24. Consequently, the custodial sentence that this Court shall impose shall be calculated and run from 7th June 2018 being the date of arrest and noting that the Accused Person has been in custody throughout. This is pursuant to Section 333(2) of the Criminal Procedure Code. Disposition 25. In the result, I hereby sentence the Accused Person, SAMUEL MUTUNGA NZAU, to imprisonment for a term of eighteen (18) years commencing on 7th June 2018 when he was arrested and having been in custody throughout. 26. Right of Appeal 14 Days explained. 27. Orders Accordingly and File Closed Accordingly. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS 30TH DAY OF JULY 2026 ______________________________________ BAHATI MWAMUYE MBS JUDGE HCCR. CASE NO.33 OF 202S5 RULING ON SENTENCE - Page 8 of 9 Delivered in the presence of: 1. Accused Present in Court 2. Ms. Caroline Muriu – Prosecution Counsel 3. Ms. Janet W. Waithaka - Defence Counsel 4. Mr. Martin Mwenda - Court Assistant HCCR. 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