https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1399

Mithika alias Kaboi v Republic (Criminal Appeal 51 of 2020) [2026] KECA 1399 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1399 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 51 of 2020 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Samson Mithika alias Kaboi Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court at Meru (Ong’injo, J.) delivered on 25th July, 2019 in H.C. CR. Case No. 22 of 2016) Judgment 1.The appellant has appealed against the judgment of the High Court (Ong’injo, J.) delivered on 25th July, 2019. 2.The appellant, Samson Mithika alias Kaboi, had been charged alongside Dorine Mukiri Anampiu, Peninah Kaigongi Anampiu and Silas Gikundi alias Mwalimu for the offence of Murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on the 24th day of April, 2016 at Muiganda village, Anjuki Location, Mikinduri Division in Tigania East Sub- County within Meru County jointly murdered Francis Gitonga Githiora. 3.After the trial, the Judge convicted the appellant of the offence of murder and sentenced him to suffer death. The co-accused were all acquitted for lack of evidence connecting them to the offence. 4.Aggrieved and dissatisfied with both the conviction and sentence the appellant preferred an appeal to this Court. In the memorandum of appeal dated 30th October, 2019, the appellant faulted the trial Judge on various grounds. The appellant filed a supplementary memorandum of appeal dated 5th December, 2024. 5.When the appeal came up for hearing before us on the 26th February, 2025 through this Courts virtual platform, Ms. Susan Nganga, learned counsel for the appellant was present for the appellant, while the appellant was present virtually from Meru Main Prison. Mr. George Muriithi, learned Prosecution Counsel was present for the State. Both counsels relied on their written submissions dated 5th December, 2024 and 21st February, 2025 respectively. 6.Ms. Nganga in her submissions indicated that the appellant was abandoning the memorandum of appeal dated 30th October, 2019, opting to rely entirely on the supplementary memorandum of appeal dated 5th December, 2024. In the supplementary memorandum, only one ground of appeal was raised, which was against the death sentence that was meted against the appellant. Ms. Nganga urged us to review his sentence in light of the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, which declared the mandatory death sentence unconstitutional and further ruled that Courts could exercise discretion and impose any sentence appropriate to each case. 7.Counsel urged that the appellant was a different man pointing out that he had accepted responsibility for the offence, expressed genuine remorse, and had shown signs of reform during his incarceration. She highlighted the appellant’s personal circumstances noting that he is 55 years old; a father of six, two of whom are minors; and that following the death of his wife while he was in prison, the children had been left in the care of the community. Counsel urged that the appellant committed the offence in anger because of an extra-marital affair he had with the 3rd accused in the case. The deceased was the husband of the 3rd accused. She prayed for a review of the sentence to an imprisonment term that will guarantee him a chance to rebuild his life and contribute to the growth of the community. 8.Mr. Murithi opposed the appeal and maintained that the death penalty was justified. He argued that the appellant’s act of stabbing the deceased to death was aggravated and demonstrated malice aforethought, and therefore warranted the maximum punishment. He dismissed the claim that the alleged extramarital relationship excused or lessened the crime. While acknowledging that the Francis Karioko Muruatetu case made the death penalty discretionary rather than mandatory, he contended that this was one of the cases where the punishment remained deserved. He noted that the appellant had not shown remorse during trial and initially challenged both his conviction and sentence. In his view, if the Court were inclined to reduce the sentence, it should nonetheless impose a deterrent custodial term. 9.We have carefully considered the appeal against the sentence of death imposed on the appellant and have considered the rival arguments of both counsel. We have been urged to consider the decision in Francis Karioko Muruatetu & others vs. Republic, (supra), where the Supreme Court held:“Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of theirs 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 set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Article 25 of the Constitution; an absolute right.” 10.We have also considered Muruatetu & Another vs. Republic; Katiba Institute & 4 Others (Amicus Curiae) (Petition 15 & 16 of 2015) (2021) KESC 31 (KLR) (6 July 2021), where the Supreme Court emphasized:“69.Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for mandatory death sentence for murder. For avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment.” 11.We have considered the circumstances of the case. The appellant has conceded he committed the offence charged, thus proving that he is remorseful for what he did. Nonetheless, an innocent life was lost, whose fault was being the husband of the appellant’s co-accused number three in the case. We have also considered the personal circumstances of the appellant as expressed by his counsel, including his alleged reformation while in incarceration. 12.We note that the appellant was sentenced in 2015 before the Francis Karioko Muruatetu & Others vs. Republic case, (supra), and therefore the trial court was under the impression that the death penalty was mandatory, as was the case at that time. Even though mitigation was received before sentence, the learned trial Judge observed that despite the mitigation, the offence carried a mandatory death penalty. The appellant deserves a review of his sentence. 13.With the foregoing, and after considering the circumstances in which the offence took place and the progressive jurisprudence that now gives the Court discretion to impose any sentence not necessarily that of the death penalty in murder cases, we are persuaded that we should interfere with the sentence imposed against the appellant, and vary it with a term of imprisonment. 14.The result of this appeal is that the sentence of death imposed against the appellant by the trial court on the 23rd October, 2015 is hereby set aside. In substitution thereof, we sentence the appellant to 25 years imprisonment from the date of sentence before the High Court. DATED AND DELIVERED IN NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAI..................................JUDGE OF APPEALJ. LESIIT..................................JUDGE OF APPEALALI - ARONI..................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar