Republic v Gerald Ngali Kasyoka [2017] KEHC 2255 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 57 OF 2011

REPUBLIC........................................PROSECUTOR

VERSUS

GERALD NGALI KASYOKA....................ACCUSED

RULING ON SENTENCE

Gerald Ngali Kasyoka was tried for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He was found guilty and convicted for murder on 21st September 2017. There were no records of previous convictions presented to the court. The prosecution asked the court to treat the accused as a first offender. This court invited the accused to mitigate before sentence but he has informed the court through his counsel Mrs. Nyamongo that he does not wish to mitigate. This court allowed the accused more time to think about the issue but this did not change his mind.

Mitigation is a requirement under Sections 216 and 329 of the Criminal Procedure Code. These provisions required the court to receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made. For accused persons facing capital offences where the law provides for death as the only penalty, an accused person may think that it is not necessary to mitigate since such mitigation will not inform the court as to the sentence to be passed given that the penalty is a mandatory death sentence. However, mitigation is important in that it is part of the fair trial contemplated under Article 50 of the Constitution. One of the aspects of fair trial is the right to appeal or review the decision of the trial court in a higher court. Mitigating circumstances “will enable a court hearing the appeal to have a holistic view of the case, and in the event that the appellate court decides to alter the conviction from a capital offence to any other offence, it will have all the facts and circumstances of the accused on record to enable it assess the appropriate sentence for the reduced offence. Further, some mitigating circumstances may disclose certain facts that materially affect the finding made by the court to such an extent that it may result in the court arriving at a different decision.”(See Joseph Kaberia Kahinga & 11 others v. Attorney General [2016] eKLR). It is unfortunate that accused persons faced with death penalty fail to understand the import of mitigation and wave that right.

I have considered the circumstances surrounding the commission of the offence giving rise to this offence. They are very unfortunate circumstances. The penalty prescribed by law is death. I have no option therefore than to sentence the accused Gerald Ngali Kasyoka to death as provided under section 204 of the Penal Code. He shall suffer death in the manner authorized by the law. Orders shall issue accordingly.

Delivered, dated and signed this 5th day of October 2017.

S. N. Mutuku

Judge