REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL PETITION NO E001 OF 2025
DANIEL NJIHIA NJUGUNA……………………..……………………..PETITIONER
VERSUS
REPUBLIC…………………………………………………………….…RESPONDENT
SENTENCE
INTRODUCTION
1. In its decision that was delivered on 24 th February 2025, in the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment) , this very court held that i t was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
2. It was in that regard that this court directed the Applicant herein to file his mitigation documents for consideration by this court on 24 th March 2026 with regard to his undated Notice of Motion application filed on 14 th January 2025.
3. The Respondent did not attend court to respond to the Petitioner’s mitigation despite having been aware of todays’ date. The Probation Office did not also file a Pre-Sentence Report as was directed by the court on 24 th March 2026. This Ruling is, therefore, based on the oral mitigation of the Petitioner herein only.
LEGAL ANALYSIS
4. In his mitigation, the Petitioner prayed that the court gives him a determinate sentence as he was convicted and sentenced in 1998. He stated that he had reformed and had studied Theology. He had done several other courses but he had lost the certificates. He asked this court to rely on the Certificates that he had provided as well as the Recommendation letter from the In-charge Manyani Maximum Prison that was dated 14 th April 2026.
5. Notably, the principle of sentencing was fairness, justice, proportionality and commitment to public safety. The main objectives of sentencing were retribution, incapacitation, deterrence, rehabilitation and reparation . The Sentencing Policy Guidelines in Kenya had added community protection and denunciation as sentencing objectives . It was important that the sentence communicate to the community, condemnation of the criminal act. The sentence would indirectly send a strong signal to deter would be offenders from committing such an offence.
6. The objectives were not mutually exclusive and could overlap. However, if the court did not take into account the three (3) objectives of deterrence, retribution and denunciation of the offence at the time of sentencing an accused person, chances of that person being reintegrated in the society would be next to impossible as there were possibilities of being harmed. The sentence had to be hinged on retributive justice for the secondary victims. Justice not only needed to be done but it had to be seen to be done.
7. It was clear from the facts of the case that on the material night of 17 th and 18 th February 1997, at Majengo Trading Centre Vihiga District within Western province (as it was then), the Petitioner jointly with others robbed Peter Okova the several items that were enumerated in a list that was attached to the Charge Sheet worth Kshs 50,000/= the property of Rakesh Budhev and immediately before or after the time of such robbery, killed Peter Okova, Tairus Avoga, Kellam Malongo and Martin Gitau.
8. As can be seen hereinabove, one of the objectives of sentencing and/or incarceration was majorly to rehabilitate offenders. This court was persuaded to find and hold that the same had been achieved herein as the Applicant had undertaken life skills that would enable him be re-integrated back to the society.
9. Having considered the facts of this case, the Applicant’s mitigation, the Prosecution’s response thereto, the Pre-Sentence Report, the Recommendation Letter dated 14 th April 2026 by Officer In-Charge …………Maximum Security Prison, the Applicant’s Certificates of completion on various rehabilitation programs and the fact that four (4) people lost their lives, this court came to the firm conclusion that a reduction of his death sentence that was commuted to life imprisonment to a sentence of forty (40) years imprisonment would be reasonable in the circumstances of this case.
10. As the Applicant’s sentence was now determinate, this court was mandated to consider the period that he spent in remand while his trial was on going in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
11. The said Section 333(2) of the Criminal Procedure Code provides that:-
“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody ” (emphasis court).
12. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
13. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR .
14. Notably, the Petitioner had been in prison for a period of twenty seven (27) years and nine (9) months. He was arrested on 19 th January 1997. He was not granted bond The trial commenced on 4 th March 1997 and he was sentenced on 13 th August 1998. The period that he remained in remand as the trial was ongoing, therefore, ought to be taken into consideration while computing his sentence.
DISPOSITION
15. Accordingly, the upshot of this court’s decision was that although the Petitioner’s conviction remained undisturbed as it was safe, his sentence of death which was later commuted to life in an executive order of the President of the Republic of Kenya be and is hereby set aside and substituted with a sentence of forty (40) years imprisonment which is to run from the date of the sentence of the lower court.
16. For the avoidance of doubt, the period between 19 th January 1997 and 12 th August 1998 be and is hereby taken into account while computing his sentence in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
17. Taking into account the remission period and the period that the Petitioner had remained in custody while his trial was ongoing, it was evident that he had already completed his sentence. It is hereby directed that the Petitioner be and is hereby released from custody forthwith unless he be held for any other lawful cause.
18. It is so ordered.
DATED and DELIVERED at VIHIGA this 7 th day of May 2026
J. KAMAU
JUDGE
CRIMINAL PETITION E001 OF 20252
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL PETITION NO E001 OF 2025
DANIEL NJIHIA NJUGUNA……………………..……………………..PETITIONER
VERSUS
REPUBLIC…………………………………………………………….…RESPONDENT
SENTENCE
INTRODUCTION
1. In its decision that was delivered on 24 th February 2025, in the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment) , this very court held that i t was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
2. It was in that regard that this court directed the Applicant herein to file his mitigation documents for consideration by this court on 24 th March 2026 with regard to his undated Notice of Motion application filed on 14 th January 2025.
3. The Respondent did not attend court to respond to the Petitioner’s mitigation despite having been aware of todays’ date. The Probation Office did not also file a Pre-Sentence Report as was directed by the court on 24 th March 2026. This Ruling is, therefore, based on the oral mitigation of the Petitioner herein only.
LEGAL ANALYSIS
4. In his mitigation, the Petitioner prayed that the court gives him a determinate sentence as he was convicted and sentenced in 1998. He stated that he had reformed and had studied Theology. He had done several other courses but he had lost the certificates. He asked this court to rely on the Certificates that he had provided as well as the Recommendation letter from the In-charge Manyani Maximum Prison that was dated 14 th April 2026.
5. Notably, the principle of sentencing was fairness, justice, proportionality and commitment to public safety. The main objectives of sentencing were retribution, incapacitation, deterrence, rehabilitation and reparation . The Sentencing Policy Guidelines in Kenya had added community protection and denunciation as sentencing objectives . It was important that the sentence communicate to the community, condemnation of the criminal act. The sentence would indirectly send a strong signal to deter would be offenders from committing such an offence.
6. The objectives were not mutually exclusive and could overlap. However, if the court did not take into account the three (3) objectives of deterrence, retribution and denunciation of the offence at the time of sentencing an accused person, chances of that person being reintegrated in the society would be next to impossible as there were possibilities of being harmed. The sentence had to be hinged on retributive justice for the secondary victims. Justice not only needed to be done but it had to be seen to be done.
7. It was clear from the facts of the case that on the material night of 17 th and 18 th February 1997, at Majengo Trading Centre Vihiga District within Western province (as it was then), the Petitioner jointly with others robbed Peter Okova the several items that were enumerated in a list that was attached to the Charge Sheet worth Kshs 50,000/= the property of Rakesh Budhev and immediately before or after the time of such robbery, killed Peter Okova, Tairus Avoga, Kellam Malongo and Martin Gitau.
8. As can be seen hereinabove, one of the objectives of sentencing and/or incarceration was majorly to rehabilitate offenders. This court was persuaded to find and hold that the same had been achieved herein as the Applicant had undertaken life skills that would enable him be re-integrated back to the society.
9. Having considered the facts of this case, the Applicant’s mitigation, the Prosecution’s response thereto, the Pre-Sentence Report, the Recommendation Letter dated 14 th April 2026 by Officer In-Charge …………Maximum Security Prison, the Applicant’s Certificates of completion on various rehabilitation programs and the fact that four (4) people lost their lives, this court came to the firm conclusion that a reduction of his death sentence that was commuted to life imprisonment to a sentence of forty (40) years imprisonment would be reasonable in the circumstances of this case.
10. As the Applicant’s sentence was now determinate, this court was mandated to consider the period that he spent in remand while his trial was on going in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
11. The said Section 333(2) of the Criminal Procedure Code provides that:-
“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody ” (emphasis court).
12. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
13. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR .
14. Notably, the Petitioner had been in prison for a period of twenty seven (27) years and nine (9) months. He was arrested on 19 th January 1997. He was not granted bond The trial commenced on 4 th March 1997 and he was sentenced on 13 th August 1998. The period that he remained in remand as the trial was ongoing, therefore, ought to be taken into consideration while computing his sentence.
DISPOSITION
15. Accordingly, the upshot of this court’s decision was that although the Petitioner’s conviction remained undisturbed as it was safe, his sentence of death which was later commuted to life in an executive order of the President of the Republic of Kenya be and is hereby set aside and substituted with a sentence of forty (40) years imprisonment which is to run from the date of the sentence of the lower court.
16. For the avoidance of doubt, the period between 19 th January 1997 and 12 th August 1998 be and is hereby taken into account while computing his sentence in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
17. Taking into account the remission period and the period that the Petitioner had remained in custody while his trial was ongoing, it was evident that he had already completed his sentence. It is hereby directed that the Petitioner be and is hereby released from custody forthwith unless he be held for any other lawful cause.
18. It is so ordered.
DATED and DELIVERED at VIHIGA this 7 th day of May 2026
J. KAMAU
JUDGE
CRIMINAL PETITION E001 OF 20252