1. The accused, Shida Tumbo Machaku was on 17.7.26 convicted of the offence of murder of one Sidi Menza Nzai alias Sidi Changa alias Sudi Mafua an elderly woman.
2. The accused’s counsel filed a plea in mitigation dated 28.7.26 in which it was stated that the accused was a first offender with no previous conviction. It was urged that he should be held less liable as the offence seemed like a spontaneous act. Further that the offence related to witchcraft which was acknowledged by the family and the area chief; that witchcraft being an allowable defence for murder, the accused should be handed a lenient sentence. Further, that at the youthful age of 40 years, the accused has the ability to reform and contribute to society. He conducted himself well throughout the trial was promoted at work and began a thriving business. He is married with one child and the sole bread winner of his family. Further, that there were no aggravating factors associated with the offence. Additionally, that the accused was under the influence of local brew having binged all night and was not in his sober mind on the morning of the demise of the deceased.
3. The pre-sentense report indicated that the accused is unremorseful and is not suitable for a non-custodial sentence.
4. The sentence for the offence of murder is death. Section 204 of the Penal Code provides that a person convicted of murder shall be sentenced to death. The sentence provided in the law is mandatory upon conviction. However, in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) the Supreme Court had this to say about the mandatory nature of the death sentence:
The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
5. It must always be remembered that the Supreme Court in the Muruatetu case did not outlaw the legality of the death sentence but the mandatory nature of the same. This is because it strips a court of its discretion in sentencing. In every case where sentence is imposed, such sentence must be both corrective and deterrent. Additionally, it must be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the offence.
6. In the case of Antony Pareira v State of Maharashtra (2 AIR 2012 SC 3802) the Supreme Court of India considered the purpose of sentence and stated:
70. Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles; twin objective of the sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
7. In sentencing the accused herein, I have considered the offence and the circumstances leading to the demise of the deceased. I have considered the brutality visited upon the defenseless and elderly woman. I have also considered the mitigation by the accused and the pre-sentence report filed by the probation officer.
8. The affidavits sworn on 29.7.26 by the accused and his brother Amani Tumbo Machaku in response to the pre-sentence report seek to demonstrate the innocence of the accused. However, this ought to have been done at the defence hearing. Amani had an opportunity to testify on behalf of the accused but he did not do so.
9. The accused maintains his innocence and says he was framed by relatives. On the other hand, he says that he was intoxicated, at the time he committed the offence. The Court notes that while the accused spent the night before the incident in a palm wine den drinking, the intoxication was self-inflicted. Notably, no evidence was adduced at the trial, to demonstrate his diminished responsibility on account of intoxication.
10. I have considered that the accused is a first offender. It is however noted that the killing of the deceased emanated from accusations that she was a witch. The Court takes judicial notice of the fact that targeted killing of elderly persons in Kilifi county on allegations of witchcraft is rampant and has reached crisis proportions. Contrary to the submissions by the accused, allegations of witchcraft can never be a legal defense for murder. Such killing is a violation of the right to life as guaranteed under Article 26 of the Constitution. There is therefore need to curb this practice by imposing a deterrent sentence.
11. Bearing all the foregoing in mind, I sentence the accused to 30 years imprisonment. The sentence shall be reduced by the period from 18.12.2020 when the accused was arrested to 28.10.21 when he was released on bond.
DATED SIGNED and DELIVERED in MALINDI this 18th day of September 2026
2. The accused’s counsel filed a plea in mitigation dated 28.7.26 in which it was stated that the accused was a first offender with no previous conviction. It was urged that he should be held less liable as the offence seemed like a spontaneous act. Further that the offence related to witchcraft which was acknowledged by the family and the area chief; that witchcraft being an allowable defence for murder, the accused should be handed a lenient sentence. Further, that at the youthful age of 40 years, the accused has the ability to reform and contribute to society. He conducted himself well throughout the trial was promoted at work and began a thriving business. He is married with one child and the sole bread winner of his family. Further, that there were no aggravating factors associated with the offence. Additionally, that the accused was under the influence of local brew having binged all night and was not in his sober mind on the morning of the demise of the deceased.
3. The pre-sentense report indicated that the accused is unremorseful and is not suitable for a non-custodial sentence.
4. The sentence for the offence of murder is death. Section 204 of the Penal Code provides that a person convicted of murder shall be sentenced to death. The sentence provided in the law is mandatory upon conviction. However, in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) the Supreme Court had this to say about the mandatory nature of the death sentence:
The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
5. It must always be remembered that the Supreme Court in the Muruatetu case did not outlaw the legality of the death sentence but the mandatory nature of the same. This is because it strips a court of its discretion in sentencing. In every case where sentence is imposed, such sentence must be both corrective and deterrent. Additionally, it must be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the offence.
6. In the case of Antony Pareira v State of Maharashtra (2 AIR 2012 SC 3802) the Supreme Court of India considered the purpose of sentence and stated:
70. Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles; twin objective of the sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
7. In sentencing the accused herein, I have considered the offence and the circumstances leading to the demise of the deceased. I have considered the brutality visited upon the defenseless and elderly woman. I have also considered the mitigation by the accused and the pre-sentence report filed by the probation officer.
8. The affidavits sworn on 29.7.26 by the accused and his brother Amani Tumbo Machaku in response to the pre-sentence report seek to demonstrate the innocence of the accused. However, this ought to have been done at the defence hearing. Amani had an opportunity to testify on behalf of the accused but he did not do so.
9. The accused maintains his innocence and says he was framed by relatives. On the other hand, he says that he was intoxicated, at the time he committed the offence. The Court notes that while the accused spent the night before the incident in a palm wine den drinking, the intoxication was self-inflicted. Notably, no evidence was adduced at the trial, to demonstrate his diminished responsibility on account of intoxication.
10. I have considered that the accused is a first offender. It is however noted that the killing of the deceased emanated from accusations that she was a witch. The Court takes judicial notice of the fact that targeted killing of elderly persons in Kilifi county on allegations of witchcraft is rampant and has reached crisis proportions. Contrary to the submissions by the accused, allegations of witchcraft can never be a legal defense for murder. Such killing is a violation of the right to life as guaranteed under Article 26 of the Constitution. There is therefore need to curb this practice by imposing a deterrent sentence.
11. Bearing all the foregoing in mind, I sentence the accused to 30 years imprisonment. The sentence shall be reduced by the period from 18.12.2020 when the accused was arrested to 28.10.21 when he was released on bond.
DATED SIGNED and DELIVERED in MALINDI this 18th day of September 2026