[2016] KEHC 5959 (KLR)
Despite the mitigation presented on behalf of the accused, including his status as a first offender and sole breadwinner for a minor child, the court is bound by section 204 of the Penal Code, which prescribes a mandatory death sentence for murder. The court acknowledged the purpose of mitigation under section 329...
Source-derived case information.
- Citation
- [2016] KEHC 5959 (KLR)
- Parties
- Applicant: Republic; Defendant: Peter Mayeka Moyongu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 73 of 2013
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Accused sentenced to death for murder.
- Legal Topics
- Murder, Sentencing, Mitigation, Mandatory Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Peter Mayeka Moyongu
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should be sentenced to death for the offence of murder as required by law.
- 2 Whether mitigating circumstances can influence the sentence for murder under the current statutory framework.
Ratio Decidendi
Despite the mitigation presented on behalf of the accused, including his status as a first offender and sole breadwinner for a minor child, the court is bound by section 204 of the Penal Code, which prescribes a mandatory death sentence for murder. The court acknowledged the purpose of mitigation under section 329 of the Criminal Procedure Code but held that, in the case of murder, the law does not permit judicial discretion in sentencing. Therefore, the only lawful sentence is death, and the court imposed it accordingly, while expressing hope that the Legislature may address this lack of discretion in the future.
Court Disposition
Accused sentenced to death for murder.
Orders
- The accused is sentenced to death for the offence of murder.
- The execution of the sentence shall be carried out in the manner authorized by law.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 73 OF 2013
REPUBLIC……………………………......................................…………………PROSECUTOR
VERSUS
PETER MAYEKA MOYONGU………………………….........................................…..ACCUSED
SENTENCE
Peter Mayeka Moyongu was charged with the murder of Job Maina Samwel contrary to section 203 as read with section 204 of the Penal Code. The offence was committed on 27th June 2013 at Kware Slums in Ongata Rongai Township within Kajiado County. The accused was tried, found guilty and convicted for murder in a judgement delivered in court on 16th March 2016. The matter was set for mitigation before sentence on 24th March 2016.
Mr. Oduor mitigated on behalf of the accused by stating that the accused is first offender and the sole bread winner of a minor child under his care after his wife left him as a result of the incident giving rise to this offence. Counsel asked the court to exercise leniency in sentencing the accused.
Mitigation is required in all criminal cases by dint of section 329 of the Criminal Procedure Code which states as follows:
The court may, before passing sentence, receive such evidence as it thinks fit to inform itself as to the proper sentence to be passed.
My understanding of this section is that the purpose of mitigation before the imposition of sentence is to guide the court as to the proper sentence to pass. The mitigation may introduce circumstances that may explain why a certain offence was committed or why an omission occurred. The taking into account of these mitigating circumstances allows the court to exercise discretion in sentences. Yet the wording of section 204 of the Penal Code, the penalty section in the offence of murder, does not allow the court discretion. The only way to go about this is to take into account the mitigation of a convicted person and pass the mandatory sentence since the law denies the court that discretion where the mitigation would have been taken into account in sentencing. This court still harbours hope that the Legislature shall address this anomaly in the law.
Having heard the mitigation by the accused and taking into account that the only sentence in a murder conviction is death, I hereby sentence the accused to death for the offence of murder. The execution of the sentence shall be carried out in the manner authorized by the law. Orders shall issue accordingly.
Dated, signed and delivered this 30th day of March 2016.
S. N. MUTUKU
JUDGE
In the presence of:
Ms Onunga, the prosecution counsel
Mr. Oduor, the defence counsel
Mr. Peter Mayeka Moyongu, the accused
Mr. Daniel Ngumbi, court clerk