REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE NO. 30 OF 2010

REPUBLIC …………………………………………….PROSECUTOR

VERSUS

DANIEL KIMANTHI KIIO …………………………….…….. ACCUSED

RULING

1. In a Judgment delivered on 9^th November, 2016  this court found the accused, Daniel Kimanthi Kiio , guilty of the  murder of Abdulrahman Rabi  on the 19^th day of  October, 2010, and  convicted him of  the offence of  murder contrary to section 203 as read with  Section 204 of the Penal Code, [Caps 63, Laws of Kenya].

2. Upon conviction, I called for a Probation Report on the antecedents and family background of the accused. The   Probation Report is dated 22^nd November, 2016 and was filed in court on the same day.  The Report is comprehensive. The accused is a first offender, and that prior to the incident he was known to be a quiet person who helped his   neighbours and donated benches from his carpentry shop to the local community church whenever there was a    meeting.

3. The murder of the deceased was the only known incident against the accused. He has been in custody since his arrest on 19^th October, 2010.  Murder is an offence which carries the death penalty under Section 204 of the Penal Code.  The accused should therefore suffer the death penalty. Several factors, firstly, of circumstance and secondly of the Constitution militate against the imposition of the death penalty.

4. On the question of circumstances, H.E. President Uhuru  Kenyatta  the  President and  Commander in Chief of the Armed  Forces of Kenya on the occasion of  Mashujaa Day, 20^th October, 2016  commuted the death penalty  imposed on all  death  row convicts.

5. Secondly on the legal and Constitutional front, I acknowledge  that Section 204 of the Penal Code (which  provides for the  death penalty) is still part  of our  law; and  Article  26(3) of the Constitution suggests that a   person’s  life may be taken away intentionally if  authorized  by the Constitution, or other written law. 

6. Abortion which is taking away  of life  is prohibited under Article  26(4), except  where  in the opinion of  a trained health  professional, there is  need for   emergency treatment, or the  life  or health of the mother is in danger, or  if  permitted by any other  written law.

7. I hold the view that what Article 26(1) guarantees is the right to life – “Every persons has the right to life”.  Article 20, on the application of the Bill of Rights states that the Bill of Rights applies to all and   binds all state organs and all persons (Article 20 (1)).  And Article 20 (3) requires the court in applying the Bill of Rights to -

(a)  Develop the law to the extent that it does not give effect to a right or fundamental freedom; and

(b)   Adopt the   interpretation that most favours the enforcement of a right or fundamental freedom;

8. And Article 20(4) also enjoins a court, tribunal or other authority in interpreting the Bill of Rights to   promote –

(a)   the values that   underlie  an  open  and democratic society based on human dignity, equity and freedom; and

(b)   the spirit, purport and objects of the Bill of Rights.

9. In my humble opinion, death is the ultimate destiny of life, and the spirit, purport and object of the Bill of Rights is to protect   life and not to take it away “intentionally”. The courts are enjoined to give effect to the rights and not take them away.

10. In the circumstances, I   would not sentence the accused to death, I   would and hereby do sentence him to twenty five (25) years in prison taking into account the years he spent in prison remand.

11. There stall be an order accordingly.

Dated, Signed and Delivered at Mombasa this 30^th day of November, 2016.

M. J. ANYARA EMUKULE, MBS

JUDGE

In the presence of:

Mr. Ayodo for State

Mr. Igunza for Accused

Mr. Kaunda Court Assistant