SENTENCE FOR A3
[1] had been charged alongside several other person with 3 offences 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 Lijodi represents the convict.
The matter proceeded for full hearing with the state calling 12 witnesses and he gave his defence. He was found guilty in the 3rd count and acquitted in two charges. All his co accused were acquitted for lack of adequate evidence.
[4] The court called for a pre sentence report and Roselyne A. Nyong’a an Assistant director with PACS filed .
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 .
6. The family of the victim also expressed some interest in having some restorative justice.
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 .
13. In this case the accused person was part of a mob that descended on the 3 victims. He was convicted on the doctrine of common intention.
14. In my judgment I had noted how the entire village had bee arrested after the incidence and how the others fled.
15. I note that the victim’s family has reconciled with the accused and were amenable to restorative justice. This was a very unfortunate incidence but the court has been preaching ADR and restorative justice and we should not be seen to blow both cold and hot air.
16. The court therefore sentences him to a probation sentence of 3 years and compensation to be agreed upon and supervised by the probation department.
17. It is so ordered
1. Dated , signed and delivered virtually this 29th day of April2025.
Wendy Kagendo
Judge
Present
Accused person and his advocate MR Lijodi
Mr Ngiri for the state
Ms Bebora court Assistant
.