Republic v Jackson Nyaga Mwangi & 1 other

6. From the report, despite being found guilty, the accused still maintains his innocence 7. The first victim’s father stated that the deceased was their economic pillar as he was the only one employed in the family. The victim was not married and di not have children. They state that as a family, they have been affected financially. The victim’s father stated that neither the accused not his family have approached them to say sorry. 8. In respect to the second victim, the younger brother was available for interview. He said at the time of the death, the deceased was the only one who was employed and the family has suffered financially and as a result of the impact, they lost their mother who suffered emotionally and it eventually affected her health. The 2nd victim was married with 2 children who are now under the care of the victim’s brother as his wife left; and they believe the death led to breakdown of their family unit. Both families of the 2 deceased persons called for custodial sentence 9. The local administrator Rwathia Location,Kihoya sublocation where accused from talked well of him; he said he was of good conduct and a very resourceful person in the community prior to the incident and the whole community were shocked to learn of the incident. The loal administration from his home area do not oppose non-custodial sentence. Determination 10. Under section 204 of the Penal Code, the sentence prescribed for the offence of murder is death. However, the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared the mandatory nature of the death penalty unconstitutional, holding that sentencing is a discretionary judicial function. Courts are now enjoined to consider the peculiar circumstances of each case, the offender’s personal situation, and the objectives of sentencing. 11. The objectives of sentencing as set out in the Sentencing Policy Guidelines (2016) include retribution, deterrence, rehabilitation, restorative justice, community protection, and denunciation. The appropriate sentence must therefore reflect a balance between the rights of the offender, the interests of the victim’s family, and the broader interests of justice. 12. In considering an appropriate sentence, the court is guided by the proportionality principle under Part I, section 1.3.1 of the 2023 Sentencing Policy Guidelines, which requires that the sentence imposed be commensurate with both the gravity of the offence and the offender’s culpability. The following aggravating factors emerge from the evidence and the presentence report: a. Loss of two lives: The accused caused the death of two fellow officers in the same incident. The taking of more than one life is recognised as a grave aggravating factor (see Republic v Ruth Wanjiku Kamande [2018] eKLR, where the court emphasised the heightened seriousness where multiple victims are involved). b. Breach of trust and duty: The accused was a trained police officer entrusted with a firearm and the responsibility of protecting life and maintaining order. The use of a service rifle against colleagues constitutes a gross abuse of authority. In the case of Republic v Stephen Sila Wambua [2019] eKLR, misuse of a police firearm led to a stiff custodial sentence. c. Impact on victims’ families: Both families suffered severe psychological, social, and economic harm. The first deceased was the sole breadwinner; the second deceased’s family structure disintegrated, with his children now dependent on relatives. The mother of the second deceased subsequently died, reportedly after emotional distress linked to the incident. Under Part V, section 5.1 of the 2023 Guidelines, victim impact is a relevant factor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18072/eng@2025-11-27 2

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d. Lack of remorse: The accused still maintains innocence despite a conviction based on overwhelming evidence. Lack of remorse may indicate limited potential for rehabilitation as held in Republic v Elizabeth Waithiegeni Ngari [2021] eKLR. 13. I note from the presentence report that the local administration from accused’s home area described the accused as of good conduct and resourceful which is a relevant mitigating factor under section 5.4.5 of the 2023 Guidelines. I also note that the accused is a father of one child and that he is a first offender. From the presentence report and evidence adduced that the accused had consumed alcohol earlier in the day. While voluntary intoxication does not excuse murder, it may reduce the offender’s ability to exercise proper judgment and is therefore relevant in assessing moral blameworthiness. This aligns with the principle of proportionality under Part I, section 1.3.1 of the 2023 Sentencing Policy Guidelines, which requires an individualized evaluation of both the offence and the offender. 14. Although the court found that the prosecution proved malice aforethought, the degree of moral culpability is moderated by the fact that the accused acted while intoxicated, in circumstances where his reasoning and impulse control were impaired. This warrants consideration while considering appropriate sentence. In the case of Wanjema v Republic [1971] EA 493, the Court of Appeal emphasized that a sentencing court must consider both the circumstances of the offence and the offender to arrive at a just and proportionate sentence. 15. In view of the above, I am required to balance the above considerations against the grave aggravating factors being the loss of two lives, the use of a service rifle against colleagues, and the significant and enduring emotional and economic impact on the victims’ families. In my view, these factors rule out a non-custodial sentence and call for a custodial sentence so as to achieve the objectives of retribution, deterrence, denunciation and protection of the community under Part V of the 2023 Guidelines. I am of the view that the death penalty and life imprisonment would be excessive in the circumstances of this case. From the foregoing, I find that imprisonment for a period of 30 years for each count will be appropriate in the circumstances. 16. Final Orders: A. Accused to serve 30 years imprisonment for each count b. Sentences in the two counts to run concurrently c. Period served by accused in remand to be computed in the sentence above. d. Right of appeal within 14 days Explained RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 27TH DAY OF NOVEMBER 2025. ……………………………… RACHEL NGETICH JUDGE In the presence of: CA Elvis Ms. Kosgei for state Mr. Mongeri for 1st Accused Accused present https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18072/eng@2025-11-27 3

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