[2013] KEHC 5577 (KLR)
The court held that, although section 204 of the Penal Code prescribes the death sentence for murder, the Court of Appeal decision in GODFREY NGOTHO MUTISO vs REPUBLIC (2010) eKLR established that the mandatory death sentence is inconsistent with the Constitution. The court considered the accused's mitigation,...
Source-derived case information.
- Citation
- [2013] KEHC 5577 (KLR)
- Parties
- Respondent: Republic; Defendant: Samson Gatimu Munguna
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 35 of 2010
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- accused convicted of murder and sentenced to 30 years imprisonment from date of first arraignment
- Legal Topics
- Murder, Sentencing, Mitigation, Mandatory Sentences, Intoxication, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Samson Gatimu Munguna
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the mandatory death sentence for murder is constitutional in light of recent appellate decisions.
- 2 Whether the accused's intoxication and status as a first offender should mitigate the sentence imposed.
Ratio Decidendi
The court held that, although section 204 of the Penal Code prescribes the death sentence for murder, the Court of Appeal decision in GODFREY NGOTHO MUTISO vs REPUBLIC (2010) eKLR established that the mandatory death sentence is inconsistent with the Constitution. The court considered the accused's mitigation, including his intoxication at the time of the offence and his status as a first offender, and determined that these factors warranted sparing him the death penalty. However, due to the gravity and circumstances of the offence, a substantial custodial sentence was appropriate. The accused was therefore sentenced to 30 years imprisonment from the date of first arraignment.
Court Disposition
accused convicted of murder and sentenced to 30 years imprisonment from date of first arraignment
Orders
- The accused is sentenced to 30 years imprisonment from 23rd September 2010.
- The accused has 15 days right of appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL CASE NO. 35 OF 2010
REPUBLIC .................……...........................................… PROSECUTOR
versus
SAMSON GATIMU MUNGUNA …........................................…ACCUSED
SENTENCE
The Accused herein was convicted of the offence of murder of BETH NYAMBURA IRUNGU on 12th day of September 2010.
In mitigation Mr. Kimunya for the accused submitted that the same is a family man with four children aged between eight (8) to seventeen (17) years and that he is remorseful for what happened and that it was due to lack of judgment affected by alcohol.
He therefore submitted that even though death sentence is the only sentence provided for under section 204 of the Penal Code this is not the only sentence that may be passed.
I am aware that the court of appeal in the case of GODFREY NGOTHO MUTISO vs REPUBLIC (2010) ekl held that the imposition of mandatory death sentence for a person convicted for murder or robbery with violence is inconsistent with the spirit and the letter of the constitution and that it is not only death sentence that shall be imposed. I take the view that the law as it stands means that once a person is convicted of murder then the only available sentence therein is death.
I have however noted that though it did not form part of the accused defence at the time of the trial Mr. Kimunya has submitted that the accused was so intoxicated so as to affect his judgment.
I therefore agree with Mr. Kimunya that the accused ought to be spared the death sentence since Mr. Njau for the state submitted that he is a first offender. However the circumstances of the commission of the offence before me requires that the accused be given a stiffer sentence.
I therefore sentence the accused to serve 30 years imprisonment from the 23rd day of September 2010 when he was first arraigned in court.
Dated and delivered at Nyeri this 21st June 2013.
J. WAKIAGA
JUDGE
Mr. Kimunya for the accused.
15 days right of appeal.
Court: Sentence read in open court in the presence of Mr. Kimunya for the accused and in the absence of the representative by Deputy Public Prosecution.
J. WAKIAGA
JUDGE