Republic v John Maina Mucheru [2022] KEHC 1058 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL CASE NO. 32 OF 2012

[FORMERLY NYERI HCCR NO. 6 OF 2012]

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

VERSUS

JOHN MAINA MUCHERU..................................................................................................ACCUSED

SENTENCE

1. The accused has been adjudged guilty of murder. This is a grave felony that attracts the death penalty.

2. However, following the momentous decision of the Supreme Court in Francis Karioko Muruatetu & another v Republic, Consolidated Petitions Nos. 15 & 16 of 2015 [2017] eKLR, the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code was declared unconstitutional.  This did not outlaw the death penalty, but it left the court with discretion to impose a lighter sentence.

3. I have considered the circumstances surrounding this offence. On 30th December 2011 the accused, a younger brother of the deceased, beat him up and hit his head with an unidentifiable object. The assault was vicious: The deceased was left bleeding from the forehead and comatose. He was taken to the hospital immediately but died in the intensive care unit five days later. The accused’s conduct was clearly premeditated.

4. I have also taken into account the mitigation tendered by his counsel. The accused is a first offender and regrets his actions.

5. Sentence should be commensurate to the moral blameworthiness of the offenderbut also guided by the nature and gravity of crime. Justice in this case calls for a custodial sentence. I sentence the accused to fifteen (15) years imprisonment. The period served by the accused in custody from the date of his arrest on 1st January  2012 (but excluding any period when he may have been out on bail) shall be deducted from this sentence.

6. The accused has a right of appeal to the Court of Appeal within 14 days and as per the Rules of that Court. A copy of the proceedings, judgment and sentence shall be supplied to him immediately.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 22ND DAY OF MARCH 2022.

KANYI KIMONDO

JUDGE

JUDGMENT READ IN OPEN COURT IN THE PRESENCE OF:

ACCUSED PERSON.

MR. KIRUBI FOR THE ACCUSED INSTRUCTED BY KIRUBI MWANGI BEN & COMPANY ADVOCATES.

MS. GAKUMU FOR THE REPUBLIC INSTRUCTED BY THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS.

MS. SUSAN WAIGANJO, COURT ASSISTANT.