Mutungi v Republic [2022] KEHC 15091 (KLR)

Mutungi v Republic (Criminal Appeal 11 of 2020) [2022] KEHC 15091 (KLR) (9 November 2022) (Sentence)

Neutral citation: [2022] KEHC 15091 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal 11 of 2020

TM Matheka, J

November 9, 2022

Between

Morris Mbugua Mutungi

Accused

and

Republic

Prosecution

Sentence

1. On October 19, 2022, the appellant Morris Mbugua Mutungi’s appeal against the conviction and sentence in Nakuru Chief Magistrate’s Criminal Case Number 3101 of 2012 was allowed in part, the conviction was sustained, and this ruling is on the sentence, pursuant to section 354 (3) (a) of theCriminal Procedure Code.

2. I sought for and received a pre-sentence report filed on November 2, 2022.

3. The probation and after care services officer recommends a non-custodial sentence.

4. However, the appellant still denies having committed the offence. The question becomes, what would the probation officer be dealing with? The report indicates there is no remorse, nothing on the appellant’s attitude towards the offence. The report also paints a picture of a family ready to receive the appellant if released on probation supervision but the probation officer does not demonstrate what the probation order will be dealing with respect to the accused person.

5. A probation order ideally serves the purpose of rehabilitation and reintegration of an offender who is aware of his wrongdoing and is ready to change for the better, and a community aware of his wrong and ready to assist in his reintegration, but without an acceptance of wrong doing on the part of the convict, that order would be an order in futility.

6. In the circumstances the probation order suggested is not suitable.

7. The appellant and his co-accused committed the offence in broad daylight. They were arrested with the stolen item soon after the incident, placing the appellant at the scene of crime, as the person who forcefully fed the complainant the poisonous drink.

8. In the circumstances the appellant’s sentence to imprisonment is sustained and the life sentence is reviewed to thirty (30) years imprisonment to run from the first date he was committed to remand custody.

9. Right of appeal – 14 days.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF NOVEMBER, 2022. Mumbua T. MathekaJUDGECourt Assistant JenifferAppellantMs Murunga for state