Republic v Desmond Mukhaya Mulusa [2017] KEHC 7442 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 86 OF 2007

REPUBLIC ………………………………..…....PROSECUTOR

VERSUS

DESMOND MUKHAYA MULUSA……………………ACCUSED

SENTENCE

The accused has been tried and convicted on 19th January 2017 for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is accused of having killed one Mary Tsisika on the night of 19th and 20th May 2007.

The prosecution did not tender in court any previous criminal records in respect of the accused and therefore this court treats him as a first offender.

In mitigation before sentence, the accused told the court that he comes from a family of seven children and that his parents are elderly. He said he had a family of two children a boy and a girl and that he does not know the whereabouts of his family since he has been in custody for a long time. He pleaded for leniency and asked the court to consider the time he has spent in custody awaiting the conclusion of this case. He told the court that he does not know how the deceased died but that he regrets her death.

I have considered the mitigation and the circumstances under which the deceased died. I have also considered that the criminal justice system has not been kind to the deceased considering the time he spent in custody. This court explained in its judgement the reasons for the delay in concluding this case.

The law grants this court powers to consider the time spent in custody and take it into account while sentencing. However, where the penalty is death, the hands of the court are tied in that the court has no power to deviate from the penalty prescribed by the law. What this means is that although the court has taken into account that the accused has been in custody for about 9 year this court cannot change the penalty of death prescribed by the law and hand the accused any other less sentence. This is the unfortunate state of affairs facing courts in this country.

I will therefore, and do hereby, sentence the accused person, Desmond Mukhaya Mulusa to suffer death in the manner provided by the laws of Kenya. It is so ordered.

Dated, signed and delivered this 2nd day of February 2017.

S. N. Mutuku

Judge