1.The accused were convicted for murder c/s 203 as read with 203 of the Penal Code.
2.The Probation Officer has filed respective pre-sentence reports on the accused as follows:Accused 1 Silas MukiraRecommendationNjogu Julius IrunguProbation OfficerTiganiaDate: 29/3/2023Accused 2 Stanley ThiaineRecommendationNjogu Julius IrunguProbation OfficerTiganiaDate: 29/3/2023”
3.For the 1st accused, Ms. Kiyuki considered the negative pre-sentence report but prayed for leniency and urged non-custodial sentence pointing out that the accused was a first offender with a young family. The 1st accused himself pleaded for leniency as follows:
4.For the 2nd accused, Mr. Atheru submitted as follows:
5.The 2nd accused added in mitigation that “my father died while I have been in Custody [and] I have children who are in school.”
6.In response, the Principal Prosecution Counsel Masila for the DPP gave the circumstances and impact of the killing on the victim’s family as follows:
7.The sentencing proceedings was further animated by the contestation between Counsel for the DPP and the Accused as to the appropriate sentence and the suitability of the Death Sentence in the circumstances of this case. For the DPP, it was urged that the court ought to make some protective measures as well as compensation for the deceased’s wife as follows:
8.Counsel for the 1st Accused did not urge a position on this aspect.
9.Counsel for the 2nd Accused responded emphasizing that –
10.While conceding the viciousness of the assault on the deceased and his wife, the court does not consider the death sentence to be warranted in this case. The accused are of course subject to other penalties for the assault on the deceased’s wife without breach of the constitutional principle of autrefois acquit, autrefois convict (section 279 of Criminal Procedure Code and article 50 (2) (o) of the Constitution) as the offence of murder herein and the grievous harm charge on the deceased’s wife are separate based on different facts although carried out in the same transaction. The death sentence in accordance with the Supreme Court’s Muruatetu decision is still available, but it should, in the respectful view of this court, rather be preserved for compellingly aggravating cases where no other objective of penal treatment may be usefully served other than a final, retributive and deterrent sentence commensurate to the highest level of revulsion of the society and debilitating impact on the family of the victim(s) and the society at large.
11.On the question of compensation, with respect, an issue of fair trial of the accused in that the injuries of the deceased’s wife were never before this court and to uphold the fair hearing of the dispute in accordance with article 50 (1) of the Constitution, a civil suit for damages in compensation for the death of the deceased and or the injuries on he deceased’s wife may, if so advised by the legal advisors of the deceased’s family be sued upon.
Order for Compensation
12.In a proper case, sections 23, 24 and 25 of the Victim Protection Act expressly provides for an order for compensation as follows:
13.With respect, it is noteworthy that section 25 of the Victim Protection Act anticipates suitable civil proceedings and provides that under the Act is not part of the sentence, as follows:
14.In this case, the matter of the extent of the injury of PW1 or the loss and damage of their property was not before the court for determination as a criminal or civil claim, and the court has not been served with adequate evidential material to be able to assess the suitable damages for the injury to PW1 the deceased’s wife or the deceased’s loss recoverable by his estate under the Law Reform Act to enable it make a judicious order. Let the family of the deceased, if so advised sue therefor as contemplated in section 25 (3) of the Victim Protection Act. It is not a proper case for an order (not sentence) for payment of compensation against the accused. As in Veronica Gitahi Case it was not clear whether the Trust Fund for compensation under section 24 of the Victim Protection Act is operationalized.
Determination on the sentence
15.Having considered the heinous nature of the offence of murder and, on the evidence before this court, the circumstances of the killing involving accompanying violence and wanton assault, and subsequent attempted immolation on person of the wife of the deceased, for which the two accused were equally and jointly to blame, its impact on the family of the deceased and the prevalence of the offence of murder in the area, against the mitigating factors urged by the accused in their breadwinner roles and prison reform while awaiting this trial, the court finds the aggravating factors to trump the mitigating factors and considers a deterrent custodial sentence to be warranted, of course crediting the accused with the period of pre-trial detention.
16.Although, Counsel for the 2nd accused Mr. Atheru urged that the court should consider circumstances now prevailing – probably with the accused having benefitted from prison training programmes while in pre-trial detention – and not the circumstances at the commission of the offence, the court respectfully considers that both circumstances are material in determining the appropriate sentence. The circumstances at the commission of the offence serves to indicate the blameworthiness of the accused while the present circumstances offer mitigation in the present situation of the accused and by way among others, as urged here, of reformation of the accused in the intervening period. It may be that the accused have been reformed, or are in the process of reformation, into better persons but their conduct and purpose at the time of the offence in assaulting the deceased and his wife by cutting them up with a panga and burning them up leading to the death of the deceased and his wife escaping with serious burn injury calls for a severe sentence as for deterrent to others of like mind, apart from its retributive merit on the accused themselves. The Court considers a sentence of imprisonment for fifty (50) years to meets the justice of the case.
17.Accordingly, for the reasons set out above, the court sentences the accused persons, Silas Mukira and Stanley Thiaine, each to serve an imprisonment term of fifty (50) years for the offence of murder contrary to section 203 as read with 204 of the Penal Code.
18.The sentence shall commence for Both the 1st and 2nd accused on 20/6/2018 to take into account the period of pre-trial detention awaiting conclusion of the trial after cancellation of Bail and take into account the period of three months between plea in July 2016 and October 2016 when they were granted bail.