[1] MANGALE NYAWA MRINNZI had been charged with an offence of murder contrary to Section 203 and 204 of the Penal Code.
[2] In terms of Section 203 as read with Section 204 of the Penal Code the accused, upon being convicted, shall be sentenced to death.
[3] MR. Ngiri represents the prosecution, while Ajigo represents the convict.
The matter proceeded for full hearing with the state calling 9 witnesses and he gave his defence. He was found guilty as charged.
[4] The court called for a pre sentence report and Roselyne A. Nyong’a an Assistant director with PACS filed one dated 6th March 2025.
5. The report is positive. It shows that the offender had no previous offences and the community had no issues with him . He was a family man and a bread winner and a village elder and the chair of the village security team.
5. Neither the accused nor the state filled any submission.
6. The sentencing objectives in Kenya have been captured in the Judiciary Sentencing Policy Guidelines at page 15 to be the following: -
1) Retribution: to punish the offender for his/her criminal conduct in a just manner.
2) Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
3) Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.
4) Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
5) Community protection: to protect the community by incapacitating the offender.
6) Denunciation: to communicate the community’s condemnation of the criminal conduct.
7. In deciding whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -
a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
b) Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.
c) Character of the offender:- non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
d) Protection of the community:- where the offender is likely to pose a threat to the community.
e) Offender’s responsibility to third parties:- where there are people depending on the offender.
f) Children in conflict with the law:- non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate.
8. The Supreme court in the Francis Muruatetu case at paragraph 71 amended the guidelines in respect of re-hearing sentence for the conviction of murder charge to include:-
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) Remorsefulness of the offender.
g) The possibility of reform and social re-adaptation of the offender.
h) Any other factor that the court considers relevant.
9. In settling on a sentence in a case such as this I take comfort in the dicta in CRIMINAL PETITION NO. 85 OF 2018, 100 OF 2018 AND 26 OF 20F 19 JACOB MWITHALIE AND 2 OTHERS in which Justice F Gikonyo stated as hereunder;
‘ The court has lamented before that ‘’mob justice’’ is not only unlawful but uncouth, barbaric and savage act which has no place in this century. In fact, its true character is ‘’mob injustice’’ as it denies the victim the right to protection and benefit of the law, condemns and takes away the life of the victim without trial, and perpetuates crime in society. It is most loathed and unlawful method to mete out justice. Unfortunately, it has become prevalent in many parts of the Republic and more specifically within this jurisdiction, it is administered on the pretext of protecting miraa. Regrettably, those who administer mob injustice end up taking the law on their hands and committing worse crimes: what a shameful and foolish adventure?
10. See also how other courts have also expressed utter disgust on this barbaric practice; for instance, Republic v Kelvin Amata Omboto & another [2017] eKLR that;
“I note that he (deceased) was clearly a victim of what is often touted as mob justice but what should ideally be "mob injustice"………… Mob justice is a very primitive and barbaric method of meting out justice that should be discouraged and condemned in the strongest terms possible as it has no place in a civilized society that observes the rule of law.”
11. The fact that a person, without provocation, sets upon another in a mob justice, slashes the victim with a slasher or panga with brutal force or in multiple times is a relevant factor in sentencing. Such is a beastly act and reminds of the ruffians or Mohocks of the yore- as they were called- about whom it was written:
‘’…..The particular talents by which these misanthropes are distinguished from one another consist in the various kinds of barbarities which they executed upon their prisoners[1]…...
12.I have however noted an increase in intolerance and violence as a way of solving dispute within the jurisdiction especially where resources are in dispute.
In this case the accused person was the chairman of the security committee and yet he shot at the deceased with an arrow before hacking him to death. He then pretends not to even have heard of the death in his own area of jurisdiction.
13. I note the report is one sided yet the offence was committed under circumstances of what locally is known as tribal clashes. There were no diligent efforts to trace the family of the deceased. Accordingly I will not accord the recommendations any weight.
14. Taking all the above into consideration, I hereby find that a deterrent sentence is called for and I sentence the accused person to a prison term of fifteen (15) years .
The sentence runs from the judgment date that is 30th January 2025 since the accused person had been out on bond.
12.It is so ordered
- Dated , signed and delivered virtually this 27th day of March 2025.
Wendy Kagendo
Judge
Present
Accused person and his advocate MR Ajoga
Mr Ngiri for the state
Ms Bebora court Assistant
.