[2022] KEHC 2523 (KLR)
The court found that, although the offence of murder is grave and traditionally attracted the death penalty, the Supreme Court decision in Muruatetu rendered the mandatory nature of the death sentence unconstitutional. The court therefore exercised its discretion to consider mitigating factors, including the...
Source-derived case information.
- Citation
- [2022] KEHC 2523 (KLR)
- Parties
- Respondent: Republic; Defendant: Peter Gitau Mburu
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 4 of 2013
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- The accused is sentenced to fifteen years imprisonment, with the period served since arrest to be deducted from the sentence.
- Judges
- K Kimondo
- Legal Topics
- Murder Sentencing, Death Penalty Discretion, Mitigation Factors, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Peter Gitau Mburu
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should be sentenced to death or a lesser sentence following conviction for murder.
- 2 What mitigating factors should influence the sentence imposed on the accused.
Ratio Decidendi
The court found that, although the offence of murder is grave and traditionally attracted the death penalty, the Supreme Court decision in Muruatetu rendered the mandatory nature of the death sentence unconstitutional. The court therefore exercised its discretion to consider mitigating factors, including the accused's status as a first offender, the difficult familial relationship, his drinking problem, and the period already spent in remand. Balancing these factors against the gravity of the offence, the court determined that a custodial sentence of fifteen years imprisonment was just, with the period already served to be deducted from the sentence.
Court Disposition
The accused is sentenced to fifteen years imprisonment, with the period served since arrest to be deducted from the sentence.
Orders
- The accused is sentenced to fifteen (15) years imprisonment.
- The period served by the accused from the time of his arrest on 26th April 2013 shall be deducted from this sentence.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MURANG’A
CRIMINAL CASE NO. 4 OF 2013
REPUBLIC............................................................PROSECUTOR
VERSUS
PETER GITAU MBURU..............................................ACCUSED
SENTENCE
1. The accused was convicted for the offence of murder. This is a grave felony that attracts the sentence of death.
2. However, the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code was declared unconstitutional by the Supreme Court in Francis Karioko Muruatetu & another v Republic, Consolidated Petitions Nos. 15 & 16 of 2015 [2017] eKLR.
3. The decision did not outlaw the death penalty, but it left the court with discretion to impose a lighter sentence.
4. I have considered the circumstances surrounding this offence. The accused and his father had a difficult relationship. The accused, who had a drinking problem, killed his father so that he could sell maize to buy alcohol.
5. I have also taken into account the mitigation tendered by his counsel. The accused is a first offender and has spent considerable period in prison remand and perhaps learnt some lessons.
6. The rule of thumb is that sentence should be commensurate to the moral blameworthiness of the offenderbut also guided by the nature and gravity of crime. Justice in this case calls for a custodial sentence. Doing the best that I can, I sentence the accused to fifteen (15) years imprisonment. The period served by the accused from the time of his arrest on 26th April 2013 shall be deducted from this sentence.
7. The accused has a right of appeal to the Court of Appeal within 14 days and as per the Rules of that Court. A copy of the judgment and sentence shall be supplied to him immediately.
It is so ordered.
DATED, SIGNED and DELIVERED at MURANG’A this 10th day of February 2022.
KANYI KIMONDO
JUDGE
Sentence read in open court in the presence of:
The accused.
Ms. A. Gakumu for the Republic.
Mr. Munene holding brief for Mr. Kimwere for the accused.
Ms. Susan Waiganjo, Court Assistant.