Republic v John Kithyululu [2020] KEHC 897 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA

AT VOI

CRIMINAL CASE NO. 12 OF 2015

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

VERSUS

JOHN KITHYULULU......................................................................ACCUSED

RULING ON SENTENCE

1. The accused person herein JOHN KITHYULULU was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 Laws of Kenya).  The particulars of the charge were that on the 1/9/2015 at California Estate in Taveta Sub-County within Taita Taveta County, the accused murdered Fredrick Kiarie Mukaru.  In a Judgment dated 25/5/2018 and read to the accused on 30/5/2018 this Court found the accused guilty of the offence as charged, and convicted him accordingly.  The Court then directed parties to file submissions on mitigation for purposes of sentencing.

2. J. M. Muthami, learned counsel, filed his submission on 20/7/2020, while Ms. Mukangu, learned counsel for the State, filed her submissions on 27/7/2020.  Probation/Victim Impact Assessment Report dated 23/7/2018 was filed in court.

3. Mr. Muthami submitted that the accused comes from a poor background and had to drop out of Technical School due to lack of school fees; that he is an only son and has the responsibility of taking care of his parents; that he is a first offender; is remorseful and apologetic for the offence and should be given a chance through a lenient sentence.

4. On her part Ms. Mukangu submitted that the accused committed the heinous offence against his former employer; that he should be sentenced in a manner that lets him learn about the gravity of his offence; that he has caused a lot of pain to the deceased, whose children have now been sent away from school.

5. I have carefully considered the submissions.  I have also considered Sections 216 and 329 of the Criminal Procedure Code, Cap 75 Laws of Kenya which require this Court to call for evidence to inform itself as to the nature and circumstances of the commission of the offence to determine the proper sentence to be imposed on an accused person.  I have also considered Francis Karioko Muruatetu & Another v Republic, Supreme Court Petition No. 15 of 2015 [2017] eKLRwhere the court held at paragraph 71:

“…the following guidelines with regard to mitigatingfactors are applicable in a re-hearing sentence for theconviction 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”

6. In my view, the accused was convicted of a very serious offence of murder.  He murdered a person who had previously employed him.  He was so merciless to a person who had been merciful to him.  This Court must send a clear message to would be murderers that upon conviction, they shall be appropriately punished, and that crime does to pay.

7. The accused has been in remand for five years now.  I have taken that period into consideration, and herewith jail the accused person to a term of twenty five (25) years from today.

That is the Judgment of the Court.

Dated, Signed and Delivered at Voi this 10th day of December, 2020.

E. K. O. OGOLA

JUDGE

Ruling delivered in chambers via MS Teams in the presence of:

Mr. Fedha for DPP

Appellant in person

Court Assistant – Peris

NOTE: This ruling was delivered by video-conference pursuant to various Practice Directives by the Honourable Chief Justice authorizing the appropriate use of technology to conduct proceedings and deliver rulings in response to the COVID-19 Pandemic.