https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11789

Kikono v Republic (Miscellaneous Application E010 of 2026) [2026] KEHC 11789 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEHC 11789 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Application E010 of 2026 NIO Adagi, J July 29, 2026 Between Sammy Daniel Kikono Applicant and Republic Respondent Ruling 1.This ruling is on the Applicant’s Notice of Motion application dated 16th January 2026 seeking that this Court does grant him mitigation and resentencing hearing pursuant to the directives issued by the Supreme Court in Francis Karioko Muruatetu & Another v Republic (2017) eKLR and consolidated with Petition No. 16 of 2015. 2.The application is supported by the Applicant’s supporting affidavit in which he avers that he is appealed to the Court of Appeal at Nairobi vide COA No. 166 of 2012 but later withdrew his appeal. He has availed an affidavit sworn on 21/05/2019 withdrawing the appeal before the Court of Appeal 3.The Applicant was convicted of the offence of murder in Machakos High Court Criminal Case No 84 of 2004 on 23rd April 2010 by Justice Lenaola (as he was then). It is alleged that on 9.7.2004 at Katothya village in Machakos District within the Eastern Province, jointly with others murdered Benson Nzomo Kilei. He was sentenced to death. 4.The Applicant was charged alongside two other persons, the 1st accused being the wife to the deceased and 2nd accused was a brother to the 1st accused. The Applicant was found with blood stained clothes and two pangas which were the murder weapons. Witnesses testified that he was found suspiciously around the town at 2:00a.m in the morning and the expert witnesses were able to match the DNA of the deceased person with the blood stains on the clothes he was wearing and the pangas on his person. 5.The Applicant is not contesting the merits or any demerits that might have occurred during the trial and hearing of the appeal thereof and respects the decisions that the court gave on the same. In other words, the Applicant is not contesting his conviction and is imploring this court to balance between his mitigating factors vis a viz the aggravating factors if any and provide the appropriate sentence. 6.On sentence, the judgement delivered on 23/04/2010 is not clear whether the Appellant was afforded the opportunity to mitigate before sentence was imposed. This, in my view, amounted to violation of the Appellant’s right to a fair trial as guaranteed under Article 50 of the Constitution. I hold the view that mitigation is not a mere procedural formality; it is a substantive component of sentencing, and failure to afford an accused person the opportunity to be heard in mitigation before being sentenced offends the principles of fair hearing. 7.I also take judicial notice that the sentence was imposed in April 2010 at the time when death penalty was treated as mandatory for the offence of murder, prior to the landmark jurisprudential intervention of the Supreme Court in Francis Karioko Muruatetu & Another v Republic (2017) eLKR. 8.Consequently, in determining whether to interfere with the death sentence, I am inclined to bear in mind the following guidelines, though not exhaustive, with respect to mitigating factors set out in The Muruatetu (supra) decisions. 9.The Muruatetu case outlines the guidelines that the Honourable Court should consider in re-sentencing murder trial. It was stated that:i.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code;ii.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu.iii.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.iv.Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.v.In re-sentencing hearing, the court must record the prosecution's and the appellant's submissions under Section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.vi.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.vii.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;(a)Age of the offender;(b)Being a first offender;(c)Whether the offender pleaded guilty;(d)Character and record of the offender;(e)Commission of the offence in response to gender-based violence;(f)The manner in which the offence was committed on the victim;(g)The physical and psychological effect of the offence on the victim 's family;(h)Remorsefulness of the offender;(i)The possibility of reform and social re-adaptation of the offender;(j)Any other factor that the Court considers relevant.viii.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.ix.These guidelines will he followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under Section 204 of the Penal Code before the decision in Muruatetu. 10.The Applicant submits that he is over fifty (50) years and has been in prison since 2004 when he was arrested with offence herein. At the time of the commission of the offence, he was a young person whose cognitive faculties were not fully developed, who acted out of immaturity, peer pressure, and poor judgment, rather than hardened criminal intent. Reliance was placed on the Court of Appeal in Joseph Njuguna Mwaura v Republic [2013] eKLR recognized that youth is a mitigating, factor. Similarly, the Muruatetu guidelines explicitly list "age of the offender" as a primary factor for consideration. 11.The Applicant also states that he was a first offender when he was arrested, he had never been in conflict with the law and has never even had an issue with the village elders or the chief. Therefore, he requests this Court to put this into consideration. 12.The Applicant also state that the events of the said day remain clear in his mind and he has lived to regret what happened, even though the life of the deceased cannot be brought back to life, he is very much remorseful for his actions. He sent his family to ask for forgiveness from the family of the deceased since he is incarcerated, he can't reach them physically. He is deeply sorry to the family and any other person who was directly or even indirectly affected by the death. He would also like to ask the entire Republic of Kenya as well as office of the public prosecutions for forgiveness and pray that they agree to forgive him and allow him to be given the chance back to the society so that he can also participate in nation building. 13.The Applicant adds that this crime has put him in prison for over twenty-one (21) years, it has brought him a lot of agony, dismay and psychological torture, not only to himself but also relatives and friends have been subjected to the same consternation by his former evil deed. 14.The Applicant states that he believes in the power of forgiveness to allow healing, he has tried to do all that is humanly possible to make good out of this bad situation. His heart bleeds with all the tears and the loss of the deceased family he hopes they find favour in his apology and forgive him. He cannot do much about the past but he can use the future to recorrect the wrong he did and also teach others the value of living a life of Godliness and integrity. 15.He avers that in the past he was a drunkard and someone who had no hope for the future, he used to walk with people of bad influence. He quoted a bible verse in Titus 3:3 which reads:“For we ourselves were also once foolish, disobedient, deceived, serving various lusts and pleasures, living in malice and envy, hateful and hating one another" 16.This was the way he used to be before he was arrested and put in custody. But after coming to prison, he got born again and got the opportunity to study the word of God and achieve Certificates. Skills and knowledge of Theology in the word of God. 17.He kindly requests the Court to look into his case as somebody who had lacked direction and now after the twenty (21) years, he has been behind bars he has been able to see his wrong doing, corrected it and now in need of a second chance in life so that he can use the remaining few years of his life teaching others the lessons he has painfully learnt. 18.The Applicant avers that after being incarcerated, the applicant realized that the longest journey in one's life is the journey to rediscovering themselves. In the period he has been in custody first, he decided to make peace with himself, then he made peace with God. It was hard at first because the guilt over what happened kept haunting him but through constant counselling from church leaders and other mentors, he has accepted himself. 19.He again discovered that everything in this life happens for a reason and his being in this place was for him to meet with his God the creator as it is written in the book of Job 36:8-9 that:-“And if they are bound in fetters, held in the cords of affliction, Then he tells them their work and their transgressions which they have acted defiantly," 20.The Applicant states that this case has taught him that from the arresting officers, to the witnesses, to the state council, to the Hon. Judge who convicted him to the prison officers were all plans of God for him to be changed. 21.It is with the above conviction that he felt that there was need to use his time in prison constructively to better himself and also reach out to fellow colleagues in prison to mentor and motivate them to better their lives while in custody and use the skills that are available in vocational courses to community when they are released. 22.In his time in prison after discovering himself he has been acquiring skills for personal development as well as helping his fellow inmates. He decided to venture into courses that would help him in his walk in this life. 23.The Applicant states that he has never had issues with indiscipline. He is a well-behaved person and this far he has never had a single indiscipline case within prison. This is evident in Recommendation Letter from the 0.1.C. Kamiti prison and the Recommendation letter from the Catholic Chaplaincy in Kamiti. 24.Since his incarceration in 2004, he has taken time to reflect on his life. When this unfortunate incident happened, he had a wife and 2 children, unfortunately his wife eloped leaving his children under the care of their old Grandmother who is ailing from diabetes. 25.Taking these factors into account, while bearing in mind the gravity of the offence and the fact that the Applicant spent approximately six (6) years in remand custody during trial having been arrested on 09/07/2004 and convicted on 23/04/2010. I am inclined to interfere with the sentence imposed by the trial court. Taking into consideration the period the Applicant has been in lawful custody and the mitigating factors put forward in the application.Following several authorities that have emanated from the Muruatetu case, I am inclined to tinker with the sentence imposed by the trial court. The Applicant definitely needs to undergo comprehensive custodial rehabilitation before being released back to society. I find the sentence of thirty (30) years imprisonment to be appropriate in the circumstances. As the Applicant remained in custody throughout his trial, the sentence shall commence from the date of arrest namely 09/07/2004It is so ordered. This file is closed. JUDGMENT DATED & SIGNED AT MACHAKOS THIS 29TH JULY 2026NOEL. I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH JULY 2026