Republic v Joseph Juma Simiyu & 2 others

of impunity and injustice – vigilante (in)justice. Mob killing. Public execution. It is an extreme expression of our culture of impunity writ large that we must desist from calling it “mob justice.” To place the venerated word “justice” next to “mob” to refer to this atavistic, barbarous and sanguinary vigintalism is to do violence to the word; and to give a glimmer of respectability to a vile ritual. 4. These words ring true in the present case with particular force. A 74-year old man is dead at the hands of a mob. A 74-year old admittedly innocent man. 5. Struck by the inhumanity of the situation, the Prosecutor, Ms. Mumbe, at first uncharacteristically urged the Court to hand down the death penalty. She thought that the circumstances justified it given the age of the Deceased; the manner in which he was killed; and the impact on his family. Upon hearing the mitigation of the three Accused Persons, Ms. Mumbe softened her stance: she ended up asking for a stiff custodial sentence. 6. Each of the three Accused Persons addressed the Court. Each made an impassioned plea to the Court to be lenient with them. Each articulated their deep remorse. Each explained how much they regretted that their ill-advised actions led to the death of the Deceased. Each stressed how much they had learnt while in custody; and how much the experience had changed their lives. Each implored the Court to give them a second chance at life. Each emphasized about their youthfulness – the 1st Accused is 32; the second Accused is 28 while the 3rd Accused is 22. 7. Ms. Kerubo, counsel for all three Accused Persons also pleaded for leniency. She pointed out that this was a case where the mob descended on the Deceased and that there was no hatched plan on the part of the three to cause his death. She pointed out that the three are first offenders and that the Court should follow the recommendation in the Pre-sentence Report and impose a non-custodial sentence since each of the three Accused Persons has been in custody for more than six years. 8. My task here is to determine the appropriate sentence for the Accused Persons. 9. According to the Judiciary Sentencing Policy and Guidelines (See para. 4.1), a Court imposes a sentence on an offender for one or more of the following purposes: 10. a. To ensure that the offender is adequately punished for the offence; b. To deter the offender or other people from committing the same or similar offences; c. To protect the community from the offender; d. To rehabilitate the offender; e. To denounce, condemn or censure the conduct of the offender; f. To restore justice and relations by making the offender accountable for his or her actions and to recognize the harm done to the victim of the crime and to the community. Arising from these purposes, a number of principles underpin the sentencing process and must be borne in mind in crafting an appropriate sentence in a given case. They include the following three: a. Proportionality: that the overall punishment must be proportionate to the gravity of the offending behaviour; b. Parsimony: that the sentence must be no more severe than is necessary to meet the purposes of sentencing; https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/2996/eng@2022-06-02 2

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c. Parity: the principle that similar sentences should be imposed for similar offences committed by offenders in similar circumstances 11. Ultimately, as many courts have pointed out, the fundamental and immutable principle of sentencing is that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. 12. In the present case, the manner in which the Deceased was killed is a weighty aggravating factor – both in its depravity and the number of persons involved. The impact of the death on the family of the Deceased is another. The age of the Deceased is another. 13. I have credited the Accused Persons with all the extenuating factors highlighted on their behalf: that they are remorseful (and they seemed so to me); and that they were extremely youthful and fell into mob hysteria with its attendant ephemeral loss of rationality; and that they have shown capacity for reform and rehabilitation. 14. I would agree with the Defence that this homicide does rise to the level of culpability that should attract the death sentence. However, I also agree with the Prosecution Counsel that the Court should, on behalf of the society, register its denunciation of the actions of each of the Accused Persons through a significant prison sentence; one which reflects the objective seriousness of the offence and communicates to the society that this kind of vigintalism is murder and leads to much injustice in the society. 15. Parity is an important principle in sentencing. Thus, I have considered such decided cases. In many such cases, Courts have imposed sentences of imprisonment for between 15 and 20 twenty years. See, for example, R v Ali Salim Bahati (Malindi Crim. Case No. 26 of 2014); Francis Charo Baya v R [2020] eKLR; R v Peter Ng’ang’a (Chuka Crim. Case No. 8 of 2017) and R v John Ng’ang’a Gacheru & Another (Kiambu Crim. Case No. 31 of 2016; [2018] eKLR). In R v Kennedy Radiala & 3 Others (Nakuru Crim. Case No. 10 of 2014), I imposed 15 years sentence in a very similar case. 16. That same sentence is called for here. All considered in this case, I have come to the conclusion that a sentence of imprisonment for fifteen (15) years is a fit one for this crime. I hereby sentence each of the Accused Person to fifteen (15) years imprisonment. 17. The Accused Persons have all been in custody since they were arrested on 15/10/2016. Consequently, the sentence will be computed to begin on that day. 18. Orders accordingly. DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF JUNE, 2022 ……………………… JOEL NGUGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/2996/eng@2022-06-02 3

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