SENTENCE
1. The offender herein Shukran Hassan was convicted of the offence of murder contrary to section 203 (1) as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 18/3/2020 at Mkomani Mkwanjuni area in Mtwapa Township within Kilifi County he murdered Paul Tia Makange Maasai.
2. This matter now comes up for sentencing after receiving the pre-sentence report and taking mitigation.
3. I have considered the mitigation by the accused person through his counsel on record Ms Nzamba. Learned counsel pleads that the court should pass a lenient sentence upon the accused person as he is remorseful and the pre-sentence report is partly in his favour. Learned counsel pleads that the accused person is a young man who wishes to try and repair his life and get a family.
4. I have also considered the pre-sentence report filed in court on 20/2/2025 and which also encompasses the victim’s views. The report indicates that the accused person appreciates the gravity of the offence and that he is remorseful. It is noted that he wished to plead guilty from the outset but he was prevailed upon otherwise. I have also noted the circumstances under which the offence was committed and the conduct of the accused person thereafter.
5. I note that, although aged between 36 and 40 years, as the report bears these two different ages in different parts, the accused person has no family of his own. He has never been married and has no children. The report indicates that the accused person’s community describes him as an individual with history of violence and majorly associated with violence, citing his past conviction for manslaughter.
6. I have considered both the mitigating and aggravating factors in determining the sentence.
7. The aggravating factors are the manner the offence was committed hitting the deceased, a guard who was in the course of his duty guarding his employer’s property with a metal rod. He hit the deceased with the rod while resisting arrest for committing another offence of stealing. The accused person also has a relevant previous conviction for manslaughter for which he was initially sentenced to serve 20 years imprisonment but later reduced to 7 years’ imprisonment.
8. The mitigating factors are that the accused person takes responsibility for the offence which he deeply regrets and he pleads for lenience.
9. The report from the victim’s family is that the deceased was married with two children and his family asks for justice and they lost a breadwinner.
10. The report indicates that the accused person was assessed by the probation officer as a medium-risk offender and recommends a lenient sentence for him.
11. Weighing all these circumstances, I find that not only all is a non-custodial sentence not appropriate but that a custodial sentence commensurate to the circumstances should be meted out.
12. The mandatory nature of the death sentence having been declared unconstitutional by the Supreme Court in the case of Francis Karioko Muruatetu and Another v. Republic [2017] eKLR, I find the same not appropriate in the circumstances of this case. The Court of Appeal has in recent decisions determined that an indefinite term of life imprisonment is unconstitutional (see the cases of Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR), and MB v Republic [2024] KECA 324 (KLR). In the cases of in Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment terms with a definite term of 30 years’ imprisonment while in Manyeso (supra), the term was 40 years imprisonment.
13. Considering the mitigating and aggravating circumstances together as well as the culpability of the accused person and the harm occasioned by his conduct in unlawfully causing the death of the deceased, and taking all these factors into account, I consider that a custodial sentence will help the accused person take a deeper reflection of his action and also enable him to come to terms with the impact of what he did. I do not find any other proper sentence for a person who kills people with abandon within a very short time of leaving prison. Perhaps the time he spent in prison was not sufficient for his rehabilitation. He has demonstrated that the court was in error to show him lenience by reducing his previous sentence from 20 years to 7 years. The sentence herein will also underscore the fact that murder is a serious offence and requires a deterrent sentence.
14. I find and do hereby pass a sentence of thirty (30) years imprisonment upon the accused person. Time spent in custody from 14/5/2020 when he was arraigned through trial and conviction to sentencing will be taken into account and subtracted from the sentence under section 333 (2) of the Criminal Procedure Code.
15. Right of appeal within 14 days explained.
16. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 25th day of February 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in person present at Shimo La Tewa prison.
Ms Nzamba for the accused person.
Ms Vallerie h/b for Mr. Ngiri for the Respondent
Johnson h/b for Etropia - Court Assistant
1. The offender herein Shukran Hassan was convicted of the offence of murder contrary to section 203 (1) as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 18/3/2020 at Mkomani Mkwanjuni area in Mtwapa Township within Kilifi County he murdered Paul Tia Makange Maasai.
2. This matter now comes up for sentencing after receiving the pre-sentence report and taking mitigation.
3. I have considered the mitigation by the accused person through his counsel on record Ms Nzamba. Learned counsel pleads that the court should pass a lenient sentence upon the accused person as he is remorseful and the pre-sentence report is partly in his favour. Learned counsel pleads that the accused person is a young man who wishes to try and repair his life and get a family.
4. I have also considered the pre-sentence report filed in court on 20/2/2025 and which also encompasses the victim’s views. The report indicates that the accused person appreciates the gravity of the offence and that he is remorseful. It is noted that he wished to plead guilty from the outset but he was prevailed upon otherwise. I have also noted the circumstances under which the offence was committed and the conduct of the accused person thereafter.
5. I note that, although aged between 36 and 40 years, as the report bears these two different ages in different parts, the accused person has no family of his own. He has never been married and has no children. The report indicates that the accused person’s community describes him as an individual with history of violence and majorly associated with violence, citing his past conviction for manslaughter.
6. I have considered both the mitigating and aggravating factors in determining the sentence.
7. The aggravating factors are the manner the offence was committed hitting the deceased, a guard who was in the course of his duty guarding his employer’s property with a metal rod. He hit the deceased with the rod while resisting arrest for committing another offence of stealing. The accused person also has a relevant previous conviction for manslaughter for which he was initially sentenced to serve 20 years imprisonment but later reduced to 7 years’ imprisonment.
8. The mitigating factors are that the accused person takes responsibility for the offence which he deeply regrets and he pleads for lenience.
9. The report from the victim’s family is that the deceased was married with two children and his family asks for justice and they lost a breadwinner.
10. The report indicates that the accused person was assessed by the probation officer as a medium-risk offender and recommends a lenient sentence for him.
11. Weighing all these circumstances, I find that not only all is a non-custodial sentence not appropriate but that a custodial sentence commensurate to the circumstances should be meted out.
12. The mandatory nature of the death sentence having been declared unconstitutional by the Supreme Court in the case of Francis Karioko Muruatetu and Another v. Republic [2017] eKLR, I find the same not appropriate in the circumstances of this case. The Court of Appeal has in recent decisions determined that an indefinite term of life imprisonment is unconstitutional (see the cases of Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR), and MB v Republic [2024] KECA 324 (KLR). In the cases of in Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment terms with a definite term of 30 years’ imprisonment while in Manyeso (supra), the term was 40 years imprisonment.
13. Considering the mitigating and aggravating circumstances together as well as the culpability of the accused person and the harm occasioned by his conduct in unlawfully causing the death of the deceased, and taking all these factors into account, I consider that a custodial sentence will help the accused person take a deeper reflection of his action and also enable him to come to terms with the impact of what he did. I do not find any other proper sentence for a person who kills people with abandon within a very short time of leaving prison. Perhaps the time he spent in prison was not sufficient for his rehabilitation. He has demonstrated that the court was in error to show him lenience by reducing his previous sentence from 20 years to 7 years. The sentence herein will also underscore the fact that murder is a serious offence and requires a deterrent sentence.
14. I find and do hereby pass a sentence of thirty (30) years imprisonment upon the accused person. Time spent in custody from 14/5/2020 when he was arraigned through trial and conviction to sentencing will be taken into account and subtracted from the sentence under section 333 (2) of the Criminal Procedure Code.
15. Right of appeal within 14 days explained.
16. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 25th day of February 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in person present at Shimo La Tewa prison.
Ms Nzamba for the accused person.
Ms Vallerie h/b for Mr. Ngiri for the Respondent
Johnson h/b for Etropia - Court Assistant