Republic v Eregai [2025] KEHC 4909 (KLR)

Republic v Eregai (Criminal Case 20 of 2019) [2025] KEHC 4909 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEHC 4909 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Case 20 of 2019

GL Nzioka, J

March 27, 2025

Between

Republic

Prosecution

and

Fred Mwonjoria Eregai

Accused

Judgment

1. By information dated 11th December 2019, the accused was arraigned in court charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya.

2. He pleaded not guilty to the charge and subsequently the case proceeded to full hearing. He was then placed on his defence at the close of the prosecution and at the close of the entire case, the court delivered a judgment dated, 27th January 2025 and found the accused guilty of the charge of murder and convicted him accordingly.

3. The court then called for the accused’s records and pre-sentence report. Thereafter the State presented the accused's records indicating that he is a first offender. In the same vein, a pre-sentence report dated, 19th February 2025 was availed alongside the victim impact statement of the even date.

4. The defence then filed submission on mitigation while the prosecution filed submissions on sentence. The parties were then given an opportunity to highlight their respective submission.

5. The defence argues that the accused committed the offence when he was seventeen (17) years old, and therefore, he cannot be sentenced to death or life imprisonment as he was still a child. The defence relied on the case of; JKK –VsRepublic Criminal Appeal No. 118 of 2011 (2013 KECA) 241 –KLR.

6. That, the accused can only be sentenced to serve under the Community Service Orders Act as provided for under the Children Act and in particular section 139 of the Act. As such the accused cannot be subjected to death or life imprisonment.

7. Further, the accused is about to complete his university education and therefore if incarcerated he will be wasted and it will also be a waste of Government resources. Furthermore, he is remorseful and regrets the unfortunate event that happened beyond control.

8. That, the pre-sentence report availed is positive as the community views indicate that the accused is disciplined and hardworking and concludes positively. Finally, that the accused has been out on bond and never breached any bond terms and prays for leniency.

9. The prosecution in response concurred that, the death or life imprisonment sentence is not appropriate in this case. However, it argued that as indicated in the victim impact assessment report, the victim’s family is still bitter and are yet to come into terms with the death of the deceased.

10. That whereas the defence pleads for a non-custodial sentence to allow the accused move on with life, the deceased’s future dreams were broken. As such a non-custodial sentence is not tenable.

11. Further, section 2 of the Children Act defines a child as someone below 18 years. However, the accused is no longer a child. The prosecution relied on the case of; JKK –Vs- Republic (Supra). Furthermore, the pre-sentence report indicates that the accused has anger issues and he should be sentenced to a custodial sentence to reflect on the same.

12. Finally, the prosecution argued that, there are aggravating factors that mitigate a non-custodial sentence which include: -a.The deceased was stabbed 12 times.b.The accused dragged the body which indicates someone who has no empathy.c.The accused and deceased were neighbours.

13. The victim’s family lawyer also submitted that the accused is not remorseful as the same is addressed from the bar as it is not reflected in the accused’s mitigation submissions filed in court. Further, the submissions that the accused has only three (3) months to conclude his university education is insensitive as the deceased lost her life and she was indeed the first born of the family. That whereas the death sentence is not called for, a custodial sentence should be meted out.

14. In the final response, the defence counsel submitted that the remorse by the accused is demonstrated as he sought for a plea bargain which was rejected by the victim’s family.

15. I have considered the afore summarised submissions, the records of the accused noting that, he is a first offender and the views in the pre-sentence and victim impact assessment report.

16. In the same vein, considering the law on sentencing, it is noteworthy that sentencing plays a central role in the administration of justice. In that regard clause 4. 6.1 of the Sentencing Guidelines (2023) provides inter alia that; the sentencing process forms part of the trial and is therefore subject to the fair hearing constitutional guarantees.

17. The Supreme Court of India in the case of, Antony Pareira V State of Maharashtra (2 AIR 2012 SC 3802) held that stated that“70. Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done”.

18. Similarly, the Supreme Court of Kenya in Francis Karioko Muruatetu & another v Republic [2017] eKLR stated that: -“(41)It is evident that the trial process does not stop at convicting the accused. There is no doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing that the court hears submissions that impact on sentencing. This necessarily means that the principle of fair trial must be accorded to the sentencing stage too.

19. In addition, the Supreme Court of Kenya gave guidelines to consider as mitigating factors in re-sentencing offenders convicted of the offence of murder and by extension sentencing in other cases as follows: -“(71)As a consequence of this decision, paragraph 6. 4-6. 7 of the guidelines are no longer applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant.(72)We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process”.

20. Be that as it may, justification, function and objective of punishment in criminal law, has five major goals: retribution, deterrence, restoration, rehabilitation, and incapacitation.

21. In that recognition of these goals, clause 1. 3 of the Sentencing Guidelines (2023), stipulates the objectives of sentencing as follows: -a.Retribution: To punish the offender for his/her criminal conduct in a just manner. It serves to deter future crime. Victims and society might feel satisfied that the criminal justice system is functioning well when they learn that the offender has received an appropriate sentence for their crimes, which raises trust in the criminal justice systemb.Deterrence: To deter the offender from committing a similar offence or any other offence in future as well as to discourage the public from committing similar offences. Thus it is divided into two components; individual and general deterrence. Individual deterrence is to dissuade the perpetrator with the objective to inflict a punishment severe enough to deter the offender from engaging in criminal activity. The convict is expected to be discouraged from committing crimes in the future as a result of the sentence. The society is the target of general deterrence. Other people are deterred from committing those offences by the punishment meted out to those who commit them.c.Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person. It aims at changing the offenders and make it easier for them to reintegrate into society, through a variety of programs and treatments. It focusses on treating the root reasons of criminal behaviour, such as dependency, mental health conditions, or a lack of education. The objective is to give the offender the resources and assistance they need to upon release, become law-abiding citizens.d.Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs. Any harm done to the victim may be compelled to be repaired or restored by the court. The goal is to put the victim back in his pre-crime status or position. The goal of restoration is to make up for any harm the perpetrator has caused the victim.e.Restitution deters crime by financially penalizing the offender. It is somewhat like a civil lawsuit damages judgement and occurs when the court directs the offender to compensate the victim for any injury. Restitution may be required in cases of financial loss, property damage, and, in rare cases, mental suffering. It may also take the form of a fine to help defray part of the expense of the criminal investigation and punishment.f.Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.g.Denunciation: To clearly communicate the community’s condemnation of the criminal conduct.h.Reconciliation: To mend the relationship between the offender, the victim and the community.i.Reintegration: To facilitate the re-entry of the offender into the society.j.Incapacitation’s main purpose is to simply keep offenders outside of society so that everyone is safe from their potentially harmful actions. A person convicted of a crime should not be permitted to mingle with the general public if there is no assurance that they will not commit the same crime again. In certain civilizations, punishment takes the form of death sentence or it may entail a sentence of life in jail without the chance of release.

22. Be that, as it were, one of the key issues to consider herein is whether the accused should be sentenced under the Children Act or the Penal Code (Cap 63) Laws of Kenya.

23. In that regard, Article 260 of the Constitution of Kenya, defines a child “an individual who has not attained the age of eighteen years.”

24. Similarly, section 2 of the Children’s Act No. 29 of 2022 adopts the definition of a child as used in the Constitution of Kenya word for word as follows: “an individual who has not attained the age of eighteen years.”

25. Further Article 53 of the Constitution provides as follows in regard to sentences that can be meted upon a child as follows: - 1. Every child has the right—(f)not to be detained, except as a measure of last resort, and when detained, to be held—(i)for the shortest appropriate period of time; and(ii)separate from adults and in conditions that take account of the child’s sex and age.

26. Furthermore, section 239 of the Children Act stipulates sentences that can be meted out upon a minor as follows: -(1)Where a child is tried for an offence, and the Court is satisfied as to their guilt, the Court may deal with the case in one or more of the following ways—(a)discharge the child under section 35(1) of the Penal Code;(b)discharge the child on his or her entering into a recognisance, with or without sureties;(c)make a probation order against the offender under the provisions of the Probation of Offenders Act;(d)commit the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender;(e)if the child is between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances;(f)order the child to pay a fine, compensation or costs, or any or all of them, having regard to the means of the child’s parents or guardian;(g)in the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act;(h)place the child under the care of a qualified counsellor or psychologist;(i)order that the child be placed in an educational institution or vocational training programme;(j)order that the child be placed in a probation hostel under the provisions of the Probation of Offenders Act;(k)make a community service order;(l)make a restorative justice order;(m)make a supervision order;(n)make any other orders of diversion provided for in this Part; or(o)deal with the child in any other lawful manner as may be provided under any written law. (Emphasis added)

27. However, the question remains should the accused who was a minor at the time offence and now an adult be sentenced as a child.

28. In that respect, the Court of Appeal in JKK –Vs-Republic (2013) eKLR stated as follows:“The dilemma we face in this appeal was the ascertainment of the age of the appellant. Going by the remarks by the Judge, he was about 17 years when he was first arraigned in court in March, 2009, it is now four years later, which means he is now over the age of 18 years, therefore, he is not suitable to be subjected to any of the sentences provided for under the Children Act. The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest. A death sentence or life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his omission or lack of judgment, by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes, which can only happen after serving a custodial sentence.” (Emphasis mine)

29. The afore observation were upheld by the Court of Appeal in DKC v Republic [2014] eKLR which stated as follows:-“Whatever the case, life imprisonment is not provided for under the Children Act, but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. We think that due to the gravity of the offence, and the current age of the appellant, he cannot be released to the society without being brought to terms with the consequences of his action or omissions by a custodial sentence. It is for this reason that we are inclined to allow the appeal against the life sentence imposed by the trial court and substitute it with imprisonment for a period of 10 years from the date of conviction. We therefore allow the appeal to the extent that the life sentence imposed on the appellant is substituted with ten years imprisonment.”

30. Furthermore, the Court of Appeal in Kiti v Republic [2023] KECA 1403 (KLR) stated: -“23. Whereas the above provision appears to offer a remedy to the child offender, the twist weaves its way in, when at the time the trial is concluded, like in this instance, the child has transitioned into a young adult and cannot benefit from the sentencing options available. We are persuaded that this was the situation the trial court encountered, when it opted to fall back on section 25 (2) of the Penal Code.

24. And now that the provision has been declared unconstitutional, what screams out for an answer is whether the court is so helpless as to stand aside and say “too bad, you were a child, now you are an adult, no penalty fits your category, go home and sin no more!” Far be it that such a situation would prevail; indeed if the objective of the Constitutional provisions; and even the Children Act is to prevent children who are in conflict with the law from being subjected to long imprisonments and detention in harsh conditions as was well captured by the court in J.K.K v R [2013] eKLR, then that purpose must be preserved in instances where the need for correction and rehabilitation of a young offender remains, even as the Court takes into account the over-arching objective which is the preservation of the life of the child and his best interest.

25. It is desirable that a message be sounded out that children who commit serious crimes, and transit into adulthood at time of conviction, cannot walk home scot-free; and whereas, it is indeed in their best interest that they must not be treated like adults; yet in the absence of a penalty commensurate with the objectives in meting out a sentence, then the measure of last resort contemplated in Article 53 (2) of the Constitution must become applicable.”

31. It follows from the afore authorities that a death and/or life imprisonment sentence for an accused who committed an offence while a minor and is sentenced while an adult is not tenable. On the flip chart, when a child commits a heinous offence, the child should bear the consequences of his/her action if at the time of sentencing the child has attained the age of maturity. As such, the issue of meting out a non-custodial sentence herein is not tenable.

32. The last issue to consider is the appropriate sentence to mete out. In considering the same I note the afore cited cases, and the following cases: -a.In Kimani –vs Republic 2023 KECA 1390 (KLR) the accused was aged between 15 and 16 years and the deceased was 8½ years and the Court of Appeal meted out a sentence of 20 years imprisonment.b.In Kiti –vs Republic 2023 KECA 1403 (KLR) the accused was aged 17 years old while the deceased was 20 years old and the Court of Appeal meted out 10 years imprisonment.c.In MMM –vs Republic (2022) KECA 1055 KLR, the accused was 16 years when he defiled murdered a minor and the Court of Appeal sentenced him to 25 years imprisonment.d.In Republic v SOO [2025] KEHC 1910 (KLR) the accused was 17 years old and the deceased 19 years old and the High Court sentenced the accused to 10 years’ imprisonmente.JKK –Vs-Republic (2013) eKLR the accused was aged 17 years old and was sentenced to 12 years imprisonment.

33. However, each case must be considered based on its unique circumstances. The question is, are there unique circumstances in this matter that call for consideration?

34. In this case, I note that, the deceased visited the accused severally to be assisted with school homework as the accused was in form 3 and she was in form 2. Equally they were neighbours, as such were growing up together as is usual in the African set up. In fact in the “old” traditional African set up, the accused would act as deceased’s “elder” to protect her against any foe. Unfortunately, that was not the case herein.

35. That said, it is the aggravating circumstances in this case that make the offence very serious, heinous and inhumane. The photographs produced reveal that, the deceased’s body was bloody. One can hardly look at the photos twice, the deceased’s face is full of blood and injuries. The evidence and photos reveal the deceased suffered a total of 12 stab wounds on the front aspect of the head and neck, measuring 60x20mm and seven (7) stab wounds at the back measuring 30x100mm.

36. It suffices to note that the jugular vein was severed, leaving the deceased with no chance of survival. The question is, why target the head and neck? What do these stab wounds indicate in terms of the pain the victim experienced? Yet, there is no evidence that the accused suffered any threat from the deceased that called for self-defence as insinuated. If it were a case of a single stab, one would conclude that it was an unintended act or incident of anger in the spa of the moment.

37. Further aggravating factor is the concealment of the deceased’s body after the murder. The parents of the deceased searched for the deceased the whole night in vain and even reported the matter to the police station. The body was eventually discovered between 5. 00 am to 5. 30 a.m dumped by the roadside. The accused had all along kept the body in the house under his bed. In fact, the accused’s parents testified that, when they arrived home the day of the murder the accused did not show any signs of any abnormal happening as he ate with them and went to bed. Lest did they know the deceased’s body was in their house.

38. Furthermore, the accused literally dragged the body and dumped it half naked along a public road. The photos taken show that the lower part of the body was completely naked. The clothes were up to the neck.

39. Further still, it is in evidence that when the accused was found with blood on his legs and questioned where it came from he was still determined to deny and conceal the murder as he is reported to have stated that, he had been hurt as he was cutting grass, and on inquiry as to where he cut the grass, he said he was slaughtering a hen. From the aforesaid, the sentence to be meted herein has to take into account these aggravating factors.

40. As regards the plea that the accused is about to finish his university education and therefore should be allowed to move on, I find no sound argument therein. The court takes judicial notice of the fact that, the accused can still continue with his studies while serving a custodial sentence. Indeed, cases have been reported of inmates who have successfully pursued their studies and graduated with degree certificates while in custody. Therefore no prejudice will be suffered by the accused.

41. The upshot of the aforesaid is that having considered the various sentences given by the court in cases of similar cases herein, ranging from 10 to 20 years, I find that the aggravating circumstances in this case call for a much more deterrent sentence. Consequently, I sentence the accused to serve years twenty-five (25) years imprisonment.

42. Right of appeal 14 days explained

DATED, DELIVERED AND SIGNED THIS 27TH DAY OF MARCH 2025GRACE L. NZIOKAJUDGEIn the presence of:Ms. Chepkonga for the StateMr. Bongongo for the accusedMr. Mwasige for the victimMs. Hannah: court assistant5