Skip to content
JudgmentThe Republic VS DENA MENZA DUNDA alias AMOS alias SAFARI7 min read

The Republic VS DENA MENZA DUNDA alias AMOS alias SAFARI

High Court at Mombasa High Court · · Wendy Micheni


Preliminaries

  1. The convict was convicted of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that onn 10th day of June, 2022 at Shanzu Pangoni Area in Kisauni Sub County within Mombasa County, murdered Millicent Zawadi.
  2. The court is now called upon to pass out an appropriate sentence herein. In compliance with the provisions of the law the court called for pre-sentencing report and invited the convict to mitigate.

Pre – Sentence Report

  1. In the report dated 3rd October, 2024 by Mutisya Kioko it was stated that the accused appeared remorseful as mentioned by his associates and family members. He was a first time offender and had always observed the law and social norms in the community. He was described as a peace loving and hardworking person.
  2. The officer noted that the Accused was apologetic and highly regretted the offence and he was sorry for his actions. He prayed for leniency and asked the Court to consider his fate as a father and breadwinner to his two children  as well as their future with his absence in the family .He asked the Court to consider lenient sentencing options. He prayed that the court further to consider the time he had spent in custody since he had never been released on bail/bond. He promised to keep peace and abide by the law in future.
  3. According to the officer, the family and community members report that he could be reintergrated back to the community effectively. They reported that his entire family depended onn him and prayed for him to be given that crucial chance so he could come back and save the worsening socio economic situaiton in his family before the situation went beyond control. They prayed that the Court have him a chance at a non – custodial measure and they promised to take responsibility in supervision and ensure he complied with Court orders and all respective provisions.
  4. On the victim impact statement dated 12th June, 2024 by David Ndung’u Wangari, it was contended that the family lost a daughter and a helper who would regularly assist them as she had her own income generating activities. The family felt the loss since they lost their kin and her child her son who had been in the custody of his father was currently living with paternal relatives.
  5. Further it was reported that the victim’s family was not enthusiastic to the attempts at reconciliation in the current instance arguing that the offender brought it upon himself and even after being implored to come clean he failed to take up the chance. All the victim’s family prayed for was justice for their daughter whose promising life was inhumanly terminated.
  6. In conclusion it was noted that the victim was the offender’s spouse and there were indications of persistent domestic violence from the onset. There were attempts to resolve them using both families but they would recur. The victim was a mother of one boy who was at the time of the statement 4 years old under the custody of the offender’s damily and who was said to have been alienated from the victim’s family by the offender whom they also accused of having ‘stolen’ their daughter and buried her without first consulting them. The family was affected psychologically and economically and had not yet found closure as yet. In the victim impart statement a deterrent sentence was recommended.
  7. In mitigation it was stated that the accused was a first offender and of middle age wo should be considered for non-custodial sentence.

Analysis and Determination

  1. 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.

  1. 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.

  1. The Supreme court in the Francis Muruatetu & Another – Versus – Republic [2017] eKLR at paragraph 71 amended the guidelines in respect of re-hearing sentence for the conviction of murder charge to include: -
  2. Age of the offender.
  3. Being a first offender.
  4. Whether the offender pleaded guilty.
  5. Character and record of the offender.
  6. Commission of the offence in response to gender-based violence.
  7. Remorsefulness of the offender.
  8. The possibility of reform and social re-adaptation of the offender.
  9. Any other factor that the court considers relevant.
  10. In this matter, the Convict and the deceased were a man and wife and therefore, this is a case arising out of gender based violence.  As stated in the Judgment, the convict and the deceased had lived together and therefore the convict ought to have known better. The family unit ought to be a source of security and not a death bed.  IT is very sad that the deceased died in her bedroom in the hands of the person she trusted and had started a family with.  The court will there not be linient in the exercise of discretion.
  11. Discretion in sentencing rests with the trial judge because he or she has the knowledge of the relevant facts before him or her and in many instances, has observed the accused and witnesses’ demeanor. The discretion must however be exercised judiciously. In the persuasive Nigerian case of African Continents Bank vs Nuamani [1991] NWLI (parti86)486, it was observed that

“The exercise of court’s discretion is said to be judicial if the judge invokes the power in his capacity as a judge qua law. An exercise of discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes, discretionary power is said to be judicious if it arises or conveys the intellectual wisdom or prudent intellectual capacity of the judge. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.”

  1. I have considered the following cases in considering the sentencing of the convict and that is the case of Republic v Joseph Otieno Owino [2020] eKLR, where the accused was sentenced to twenty (20) years imprisonment for killing his wife and Republic v Samson Kalamaui Lebene KBT HCCR Case No. 2 of 2017 where the court sentenced a husband who killed his wife following a domestic quarrel to imprisonment for five (5) years to meet the justice of the case, rehabilitation and deterrence of the accused and assuagement of the deceased’s family.

Conclusion and Disposition.

  1. I have considered the fact that the convict is a first offender. The accused is remorseful and regrets the offence. I take note of the fact that the family of the accused and the family of the deceased are yet to reconcile. In my view the offender deserves custodial sentence so as to deter other would be offenders from involving themselves in gender-based violence. while in custody the offender will also benefit from anger management skills which contribute to commission of the offences such as this.
  2. I take note of the fact that the accused person has been in custody since 23rd June, 2022 a period close to 2 years and 5 months.
  3. I hereby orders as follows:-
  4. The Accused to serve 20 years imprisonment.
  5. Period served in remand to be reduced from the sentence above.  That is the sentence should run from 9th July 2022 , the date when he was first arraigned before court.
  6. Right to Appeal 14 days.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….31st…………DAY OF ……October …………………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

The accused person and the advocate MR NYAGA

M/s. Bebora, Court Assistant;

Ms. Maina  for the State Counsel;

    The Republic VS DENA MENZA DUNDA alias AMOS alias SAFARI The Republic VS DENA MENZA DUNDA alias AMOS alias SAFARI