'1. The accused person, JOHANA KIPROTICH LOUNONI was charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code.
2. After a full trial, this Court on 16th October 2025 found the accused guilty and convicted him as charged.
3. Upon conviction, the prosecution counsel informed court that the accused was a first offender. I called for presentence report before mitigation which was filed on……..
PRESENTENCE REPORT
4. From the report, the accused is 40 years old. He denies the offence. He says he does not know who killed the deceased. He does not show remorse. The victim’s family are still bitter and are not willing to forgive the deceased. The deceased’s father who is also accused’s father stated that the accused had threatened to kill him before .the father however says despite accused’s conduct, he has been assisting the accused by taking care of his 4 school going children as accused’s wife left after his arrest
5. The community stated that the accused had no good conduct prior to the incident as he had created disturbance and threatened to kill his father and other family members. They said he had been arraigned in court before for offence of assault.
MITIGATION
4. The defence counsel Mr.Mwaita submitted that the accused is aged 40 years and is married with 4 children. He submitted that the accused suffers from allergy and has suffered pneumonia some years back and motor cycle accident.
5. Counsel submitted that the accused is a first offender and has been in custody since April 2022.Counsel submitted that he lost 4 children earlier due to a curse placed on him by his mother the deceased herein and on the material night ,he went to his house while stuck naked and accused was angered since he had lost children before and the deceased wanted to create more problems for him but he had no intention to kill his mother the deceased herein.
6. The prosecution counsel submitted that the presentence report is negative; that the victim’s family and local administration gave negative sentiments. The accused’s father stated that accused had threatened to kill him before and also created disturbance at home. She prayed for custodial sentence in view of the negative report.
7. In a rejoinder, the defence counsel said that the allegations which the prosecution counsel stated to sway the courts mind are from third party and have not been tested in a criminal process.
DETERMINATION
6. The offence of murderunder Section 204 of the CPC attracts a penalty of mandatory death sentence but in view of decision supreme court in the case of Muruatetu II where the supreme court declared mandatory nature of death sentence unconstitutional. The court now has discretion to impose a lesser sentence depending on circumstances of each case.
7. I have taken into consideration the objectives of sentencing being deterrence, rehabilitation, retribution, restorative justice, and protection of the public.
8. Further, in considering the appropriate sentence, I have taken into account:
a) The nature and gravity of the offence;
b) The circumstances under which it was committed;
c) The character of the offender;
d) The victim’s circumstances and impact;
e) The time already spent in custody.
9. I have considered the fact that accused is a first offender and is a married person with a wife and 4 children. I also take note of the circumstances surrounding the offence. From the report and defence, the accused had lost 4 children which he believed was as a result of curse spell from the deceased. From the report, the deceased went to his house naked and he feared she was going to cause another misfortune in his father .I however note that beside the said provocation, the accused had no prior good conduct as the father said he had threated to harm him and also created disturbance. From the foregoing, his action was not solely as a result of the alleged curse by the deceased. The deceased being his mother, and noting that from evidence there was alcohol in accused’s house, the deceased may have been drunk and accused may have overreacted in the circumstance. From the foregoing, I find that custodial sentence will be appropriate to serve as deterrent, retributive and denunciation.
10. FINAL ORDERS:
a) Accused to serve 15 years imprisonment
b) Any period already spent in custody to be computed in the above sentence under Section 333(2) CPC.
c) Right of appeal explained.
In the presence of:
- Ms.Omari for Accused
- Mr. Mwaita for Accused.
- CA, Karanja
- Accused Present
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2. After a full trial, this Court on 16th October 2025 found the accused guilty and convicted him as charged.
3. Upon conviction, the prosecution counsel informed court that the accused was a first offender. I called for presentence report before mitigation which was filed on……..
PRESENTENCE REPORT
4. From the report, the accused is 40 years old. He denies the offence. He says he does not know who killed the deceased. He does not show remorse. The victim’s family are still bitter and are not willing to forgive the deceased. The deceased’s father who is also accused’s father stated that the accused had threatened to kill him before .the father however says despite accused’s conduct, he has been assisting the accused by taking care of his 4 school going children as accused’s wife left after his arrest
5. The community stated that the accused had no good conduct prior to the incident as he had created disturbance and threatened to kill his father and other family members. They said he had been arraigned in court before for offence of assault.
MITIGATION
4. The defence counsel Mr.Mwaita submitted that the accused is aged 40 years and is married with 4 children. He submitted that the accused suffers from allergy and has suffered pneumonia some years back and motor cycle accident.
5. Counsel submitted that the accused is a first offender and has been in custody since April 2022.Counsel submitted that he lost 4 children earlier due to a curse placed on him by his mother the deceased herein and on the material night ,he went to his house while stuck naked and accused was angered since he had lost children before and the deceased wanted to create more problems for him but he had no intention to kill his mother the deceased herein.
6. The prosecution counsel submitted that the presentence report is negative; that the victim’s family and local administration gave negative sentiments. The accused’s father stated that accused had threatened to kill him before and also created disturbance at home. She prayed for custodial sentence in view of the negative report.
7. In a rejoinder, the defence counsel said that the allegations which the prosecution counsel stated to sway the courts mind are from third party and have not been tested in a criminal process.
DETERMINATION
6. The offence of murderunder Section 204 of the CPC attracts a penalty of mandatory death sentence but in view of decision supreme court in the case of Muruatetu II where the supreme court declared mandatory nature of death sentence unconstitutional. The court now has discretion to impose a lesser sentence depending on circumstances of each case.
7. I have taken into consideration the objectives of sentencing being deterrence, rehabilitation, retribution, restorative justice, and protection of the public.
8. Further, in considering the appropriate sentence, I have taken into account:
a) The nature and gravity of the offence;
b) The circumstances under which it was committed;
c) The character of the offender;
d) The victim’s circumstances and impact;
e) The time already spent in custody.
9. I have considered the fact that accused is a first offender and is a married person with a wife and 4 children. I also take note of the circumstances surrounding the offence. From the report and defence, the accused had lost 4 children which he believed was as a result of curse spell from the deceased. From the report, the deceased went to his house naked and he feared she was going to cause another misfortune in his father .I however note that beside the said provocation, the accused had no prior good conduct as the father said he had threated to harm him and also created disturbance. From the foregoing, his action was not solely as a result of the alleged curse by the deceased. The deceased being his mother, and noting that from evidence there was alcohol in accused’s house, the deceased may have been drunk and accused may have overreacted in the circumstance. From the foregoing, I find that custodial sentence will be appropriate to serve as deterrent, retributive and denunciation.
10. FINAL ORDERS:
a) Accused to serve 15 years imprisonment
b) Any period already spent in custody to be computed in the above sentence under Section 333(2) CPC.
c) Right of appeal explained.
In the presence of:
- Ms.Omari for Accused
- Mr. Mwaita for Accused.
- CA, Karanja
- Accused Present
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