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High CourtOtherCriminal Case No. 16 of 2015

Republic v DKP

High Court of Kenya
28 October 2020
CKC. Kariuki
305 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Health and time served can reduce a sentence, but lack of remorse and pending charges can still lead to jail time.

What this practically means

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Executive summary

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This is a sentencing judgment of the High Court at Garissa in Criminal Case No. 16 of 2015, following the accused DKP's conviction for murder on 18/11/2019. Sentencing was delayed because the accused was undergoing hospital treatment. A probation report dated 28/11/2019 disclosed that he suffers from spinal tuberculosis (Pott's disease), leaving him immobile and dependent on others for movement. Defence counsel in mitigation relied on the probation report, particularly the accused's health condition, and submitted that the stabbing arose from a fight as the accused was stopping theft. The court noted the accused had been in custody since 27/7/2015, over five years. It also noted a prior conviction for preparation to commit a felony (CRC No. 15 of 2013) which was quashed on appeal, and a pending case of escape from lawful custody (CRC No. 796 of 2016). The court observed that the accused still denied causing the death and displayed no remorse or repentance, and therefore could not benefit from a non-custodial sentence. Balancing his time in custody and the pending case, the court sentenced him to 10 years imprisonment backdated to 27/7/2015, leaving five more years to serve, and ordered that he be returned to the lower court in Garissa for trial in the pending escape case. Judgment delivered on 28 October 2020 by C. Kariuki, Judge.

Key legal issues

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01

Appropriate sentence for murder given ill health and time served

Holding

Custodial sentence of 10 years imposed, backdated to the date of arrest so that the over 5 years already served counts toward it

Reasoning

The court considered the probation report showing the accused suffers spinal tuberculosis rendering him immobile, his over five years in custody since 27/7/2015, and mitigation based on health. However, his lack of remorse, continued denial, prior conviction and pending escape case weighed against a non-custodial sentence.

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02

Whether ill health justifies non-custodial sentence

Holding

No - health alone did not outweigh the gravity of the offence and the accused's conduct

Reasoning

The probation report dated 28/11/2019 detailed the accused's spinal tuberculosis (Pott's disease) and immobility, and defence counsel relied on it in mitigation. The court nonetheless found that his denial of the killing and absence of remorse or repentance meant he could not benefit from a non-custodial sentence.

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Legal principles established

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  • Time spent in custody before sentence may be taken into account by backdating the sentence to the date of arrest

Court orders

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  1. 1.Sentenced the accused to 10 years imprisonment to run from 27/7/2015, leaving 5 more years to serve
  2. 2.Accused to be taken back to the lower court in Garissa for trial in CRC No. 796 of 2016 (escape from lawful custody)
Jurisdiction invoked
Sentencing jurisdiction over a convicted murder accused (first-instance criminal case)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v DKP", Case Analysis (2020). Criminal Case No. 16 of 2015. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.