[2021] KEHC 6317 (KLR)
The court found that, although the statutory penalty for murder is death, the Supreme Court in Muruatetu declared the mandatory death penalty unconstitutional, allowing courts discretion in sentencing. The accused, with others, subjected the deceased to cruel and inhuman treatment resulting in death, without due...
Source-derived case information.
- Citation
- [2021] KEHC 6317 (KLR)
- Parties
- Applicant: Republic; Defendant: Samuel Ndung’u Wainaina
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Murder Case 11 of 2017
- Procedural Posture
- Murder Case / Sentencing Ruling
- Outcome
- Accused sentenced to 40 years imprisonment from date of conviction.
- Judges
- CM Kariuki
- Legal Topics
- Murder, Sentencing Principles, Death Penalty, Mitigation, First Offender, Unconstitutional Mandatory Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Samuel Ndung’u Wainaina
Defendant
Procedural Posture
Murder Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused should be sentenced to death or a lesser sentence following the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the accused, considering the circumstances of the offence and mitigation.
Ratio Decidendi
The court found that, although the statutory penalty for murder is death, the Supreme Court in Muruatetu declared the mandatory death penalty unconstitutional, allowing courts discretion in sentencing. The accused, with others, subjected the deceased to cruel and inhuman treatment resulting in death, without due process, for an alleged theft. The court considered the gravity of the offence, the suffering inflicted, and the need for deterrence. However, the accused's status as a first offender and his time in custody since 2017 were mitigating factors. The court determined that a severe but not maximum sentence was appropriate, imposing a 40-year term of imprisonment from the date of...
Court Disposition
Accused sentenced to 40 years imprisonment from date of conviction.
Orders
- Accused will serve imprisonment for a period of 40 years to run from date of conviction 13/05/2021.
- Right of appeal explained.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAHURURU
MURDER CASE NO. 11 OF 2017
REPUBLIC..............................................................................PROSECUTOR
-VERSUS-
SAMUEL NDUNG’U WAINAINA................................................ACCUSED
RULING ON SENTENCING
The accused was charged and convicted with offence of Murder contrary to Section 203 of the Penal Codevide judgment of Wendoh J. delivered by myself on 13/05/2021 and dated and signed by Wendoh J. on 03/03/2021.
After delivery of the verdict, the State via Ms. Rugut State Counsel confirmed that there were no previous records and thus the accused can be treated as a first offender.
In mitigation, the accused’s advocate Mr. Mbugua told court that he was instructed, that accused is remorseful. He also told the court that the deceased died in course of being disciplined due to his wayward conduct. That the accused has now realized that the was wrong to take law into his own hands in disciplining the deceased leading to the cause of death. He urged court to accord lenience in sentencing.
The court then ordered the probation officer to make report on accused’s background leading to the incident in which the deceased died.
The matter was fixed for mention on 06/06/2021 for the report to be filed.
However, come 08/06/2021 a report from the State Counsel indicated that the post convict report (PCR) could not be prepared as the accused refused to cooperate.
Thus the court directed that the sentencing would therefore proceed without the sought PCR report.
The court will thus rely on record to determine the appropriate sentence.
Under Section 204 of the Penal Code the penalty for murder is death sentence. For a longtime the death penalty was mandatory sentence until 17/12/2017 when the Supreme Court in Muruatetu case ruled that the mandatory aspect of death sentence is unconstitutional, thus rendering death sentence to be a maximum sentence giving trial court latitude to consider other sentences other than death sentence.
It is in light of the aforesaid jurisprudential development, I go ahead to consider the appropriate sentence to accord to the accused the befitting sentence. Accused with others on the ground of allegation of theft of cow perpetrated by the deceased did beat, attempted to lynching using tyre, the deceased. They placed stinging nettle on deceased’s face and continued beating him until he died.
Earlier they had fractured his leg and were pulling him by the fractured leg. He must have experienced very excruciating pain before he died.
The accused and others subjected the deceased to a very cruel and inhuman treatment in gross violation of his fundamental rights and freedoms.
Deceased was killed without being accorded a hearing and subjected to death penalty for a cow allegedly stolen. The accused thus should also get a very severe sentence.
He has to be a lesson to people like him who thinks that they can take law into their hands and take away people’s lives.
Thus the court having noted that he has been in custody since 2017 and thus he is a first offender; He is therefore not to be awarded maximum sentence but a periodic sentence; Thus;
1. Accused will serve imprisonment for a period of 40 years to run from date of conviction 13/05/2021.
Right of appeal explained.
DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 14TH DAY OF JUNE, 2021.
........................................
CHARLES KARIUKI
JUDGE