[2021] KEHC 3332 (KLR)
The court found that the accused was not suitable for a non-custodial sentence due to his lack of remorse and failure to accept responsibility, as highlighted in the pre-sentence report. The court considered the aggravating circumstances, including the vulnerability of the victim and the accused's conduct, and...
Source-derived case information.
- Citation
- [2021] KEHC 3332 (KLR)
- Parties
- Applicant: Republic; Defendant: Wambua Musyoka Alias Kioko
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 98 of 2017
- Procedural Posture
- Criminal Trial / Sentencing Ruling
- Outcome
- convicted and sentenced
- Judges
- GMA Dulu
- Legal Topics
- Murder, Sentencing, Mitigation, Pre Sentence Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Wambua Musyoka Alias Kioko
Defendant
Procedural Posture
Criminal Trial / Sentencing Ruling
Legal Issues
- 1 Whether the accused should be sentenced to the maximum penalty for murder under the Penal Code.
- 2 Whether mitigating factors and the pre-sentence report justify a lesser sentence than the death penalty.
Ratio Decidendi
The court found that the accused was not suitable for a non-custodial sentence due to his lack of remorse and failure to accept responsibility, as highlighted in the pre-sentence report. The court considered the aggravating circumstances, including the vulnerability of the victim and the accused's conduct, and determined that a severe custodial sentence was warranted. However, guided by the Supreme Court's decision in Muruatetu, the court exercised its discretion not to impose the death penalty, instead sentencing the accused to forty years' imprisonment.
Court Disposition
convicted and sentenced
Orders
- The accused is sentenced to forty (40) years' imprisonment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRC. NO.98 OF 2017
(FORMERLY MACHAKOS HCCRC 3 OF 2017)
REPUBLIC...................................................................................PROSECUTION
VERSUS
WAMBUA MUSYOKA AliasKIOKO.................................................ACCUSED
RULING ON SENTENCE
1. The accused person herein has been convicted of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The Prosecuting Counsel Ms. Gitau has asked for imposition of the maximum sentence, as the deceased was a defenseless 8 year old child, whom the accused strangled and threw into a dam. Counsel added that the accused was a person of troublesome character, and had attempted to conceal his identity, and was not remorseful.
3. The defence counsel Mr. Hassan, on the other hand, in mitigation, submitted that the accused person, who was 42 years of age, had been in custody since 2017 and had reformed while in prison custody. Counsel added also that the accused person had expressed his wish to start a family, and asked the court to consider the period the accused had remained in custody during trial, in sentencing him.
4. Before considering the appropriate sentence to impose, this court ordered that the Probation Officer – Makueni file a pre-sentence report, and such report dated 29th June 2021 was filed in which it is stated as follows –
“… the accused person has failed to accept responsibility for the offence as he continued to deny that he killed the deceased. Further his family made no effort to look for the bereaved family for consolation and reconciliation. In this view, the accused became hard for behavioral correction if at all he does not feel guilty of the offence; hence he is unsuitable for non-custodial management”.
5. Having considered the circumstances of the case, the mitigating factors, and the pre-sentence report, I find that the accused person is not suitable for a non-custodial sentence. He also deserves a severe sentence as he is not remorseful. Guided by the principles set out in the Supreme Court case of Muruatetu (2015) eKLR, I will not pronounce the death penalty. I sentence the accused person to imprisonment for forty (40) years.
Right of appeal explained.
DELIVERED, SIGNED & DATED THIS 6TH DAY OF OCTOBER 2021, IN OPEN COURT AT MAKUENI.
...............................
GEORGE DULU
JUDGE