[2023] KEHC 23355 (KLR)

Republic v Wanyama (Criminal Case E012 of 2021) [2023] KEHC 23355 (KLR) (13 October 2023) (Sentence)

Neutral citation: [2023] KEHC 23355 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E012 of 2021

DK Kemei, J

October 13, 2023

Between

Republic

Prosecutor

and

Ayub Simiyu Wanyama

Accused

Sentence

1. The accused herein Ayub Simiyu Wanyama has been charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code. Vide a judgement dated 30th June, 2023, he was found guilty over the murder of Charles Natembea Simiyu and convicted accordingly.

2. During the sentence hearing, both learned counsel for the prosecution and defence opted to rely on the pre-sentence report dated 20. 7.2023 and filed on 28. 7.2023 by the County Probation officer. The report indicates that the accused and deceased were step brothers and that the accused attacked the deceased over some proceeds of sale of family land as he believed that the deceased had short - changed him. The accused is indicated as an irresponsible and violent man who was an alcoholic and abused drugs. The victim’s family is reported to be still bitter over the loss of their kin and maintain that no reconciliation proceedings have been initiated and thus they are opposed to any community based court sanctions consideration. The local administration holds the view that the accused has had a history of violence and substance abuse and that they blame him for failing to seek resolution of any dispute with the deceased through legal means. Finally, it was the view of the probation officer that accused’s release is unlikely to promote successful community rehabilitation outcomes.

3. I have given due consideration to the sentiments of the probation officer vide his report dated 20. 7.23. The accused has already been convicted of the offence of murder and that pursuant to section 204 of the penal code, the punishment provided for is a sentence of death. However, following the decision of the Supreme Court in the case of Francis Karioko Muruatetu And Another Vs R( 2017 ) eKLR the mandatory nature of the death sentence was declared to be unconstitutional in the following terms:“(48)Section 204 of the Penal Code depones the court of the use of judicial discretion in matter of life and death. Such law can only be regarded as harsh unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has nonetheless to impose a sentence, the sentence imposed fails to confirm to the tenets of fair trial that accrue to accused persons under Article 25 of the Constitution; an absolute right”.

4. The Judiciary Sentencing Policy Guidelines provide that courts ought to consider several factors before passing sentence and which include; age of the offender, whether the convict is a first offender, whether the offender pleads guilty, commission of the offence in response to gender based violence, character and record of the offender, remorsefulness of the offender, the possibility of reform and social adaptation of the offender.It is noted that both learned counsels herein have relied on the probation officer’s report to be adopted as part of the sentence hearing. It is instructive that such a report is not binding but persuasive as the same has not been subjected to cross examination by the parties in court. Justice Odunga (as he then was) inR -Vs- Antony Mwema Mutisya(2020) eKLR has this to say: -…. In undertaking a resent4encing, the court must consider whether the circumstances of the accused during his / her incarceration have changed for the better or for the worse. It is therefore important that not only should a report be availed to the court concerning the victim’s family and the offender’s family but also the report form the prison authorities regarding the conduct of the offender during the period of incarceration . It is therefore my view that where a pre-sentence is directed, the trial court ought to consider the filing of a probation report in order to assist to arrive at an appropriate sentence. However, the failure to do is not necessarily fatal to the sentence”.

5. In sentencing the accused, i have to take into consideration several factors/reasons such as: the case of Francis Karioko Muruatetu & Another - v- Republic( 2017 ) eKLR , mitigating factors submitted by both counsels for prosecution and defence, the judiciary sentencing policy guidelines particularly paragraph 23. 7, the convict has already been convicted of murder, the deceased had aright to life that was taken away form him, there are no previous records of the convict, the convict has been in remand since 27. 3.2021 to date which period has to be taken into consideration.

6. The Judiciary Sentencing Policy Guidelines Paragraph 4 .1 provides that a balanced sentence strives to attain a reformative, preventive, deterrent, denunciative, community protection and retributive objectives of punishment. These factors may not have legal weight in the difficult search for an appropriate and balanced sentence, but the weight assigned to each factor must be appropriate and that the court must then determine whether the convict can be adequately sentenced with a non-custodial sentence, payment of fine or forgiveness based on a balance of all the factors in mitigation and aggravation. In the case of Charo Ngumbao Gugudu -vs R (2011) the Court of Appeal held as follows:-“Further the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is thus not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before setting for any given se4ntence. See Ambani -s- Republic (1990) eKLR”.

7. From the post mortem report produced by Dr Edward Vilembwa (PWI) , the deceased sustained injuries such as deformed skull, cut wound on frontal head and lacerations on the occipital region of the head. He formed the opinion that the cause of death was severe head injury due to comminuted skull fractures with brain laceration inflicted by a blunt object with a sharp edge. It transpired from the evidence that the accused herein, while armed with a metal rod, confronted the deceased over some money allegedly owed by the deceased to the accused and viciously hit him and later fled from the scene upon seeing an irate crowed baying for his blood. It also transpired that the accused had in the past harbored a grudge against the deceased over some sale proceeds from a land transaction in which the accused had claimed that the deceased had short-changed him to the tune of Kshs. 30,000/- which sum the accused claimed had been squandered by the deceased on prostitutes.

8. As indicated in the pre-sentence report, the accused ought not to have taken the law into his hands but should have used legal means to seek redress against the deceased. I find that the deceased did not deserve to die in the manner he did. Had the accused resorted to other channels of redness such as roping in the clan elder (Mukasa) etc., the deceased would be alive today. The pre-sentence report indicates that the accused is a violent individual who abuses alcohol and drugs in the area.

9. It is noted that both families of the deceased and accused have not initiated reconciliation attempts and as such, the hostility is still felt between the two families. This informs the probation officer’s sentiments that the accused’s immediate release is unlikely to promote successful community rehabilitation outcomes.

10. It is noted that the accused has been in custody from 27. 3.2021 to date . This period will be taken into consideration. As the accused is a first offender, i find the maximum sentence of death would not be appropriate in the circumstances. As noted in the pre- sentence report, an order for custodial rehabilitation will benefit the accused even through he still has a young family. This will help to mould him into a better person before being released back to the society.

11. In the result, I order the accused herein Ayub Simiyu Wanyama to serve a sentence of twenty (20) years’ imprisonment. The same shall commence form the date of arrest namely March 27, 2021.

DATED AND DELIVERED AT BUNGOMA THIS 13TH DAY OF OCTOBER, 2023D KEMEIJUDGE