Republic & 1 other v Daniel Nyanjong & 1 other

set aside and an order made by the Court of Appeal for resentencing as hereunder: “The final orders are that the appeal on conviction fails, and is hereby dismissed. The appeal on sentence is allowed to the extent that the death sentence is set aside. The file shall be remitted to the High Court forthwith for the fixing of a sentencing hearing date. [3] Accordingly, upon receipt of the file, the Court called for a Pre-Sentence Report and fixed the primary file for sentencing hearing on 12th March 2026. The inmate (herein referred to as “the accused” for the purposes of the sentencing hearing) was therefore given an opportunity on the 12th March 2026 to address the Court in mitigation; which he did through his counsel, Mr. Ongoso. Counsel submitted that the accused had reformed and had undergone pastoral training as well as training on mental health and anger management. The Court was also urged to consider that the accused had thus far spent 13 years in jail and that the Pre-Sentence Report was in favour of non-custodial sentence. [4] On her part, counsel for the State, Ms. Mokua, urged for a stringent sentence to send a message to the public on domestic violence. She pointed out that the incident took place in the presence of the accused’s children who were undoubtedly traumatized by the occurrence; and therefore the death sentence was well deserved. [5] Needless to mention that the offence of murder entails the penalty of death. Section 204 of the Penal Code is explicit that: “Any person convicted of murder shall be sentenced to death.” 2|Page HCCRC NO. 69 OF 2013 RULING

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[6] As has often been stated, the objective of sentencing is manifold. In the Judiciary Sentencing Policy Guidelines, some of these objectives are set out as hereunder: [a] Retribution: to punish the offender for his/her criminal conduct in a just manner. [b] Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences. [c] Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person. [d] Restorative justice: to address the needs arising from the criminal conduct such as loss and damages. [e] Community protection: to protect the community by incapacitating the offender. [f] Denunciation: to communicate the community’s condemnation of the criminal conduct. [7] Hence, although Section 204 of the Penal Code stipulates that a person who commits the offence of murder shall be liable to death, it is not in every murder case that the penalty of death would be warranted. In Spence v The Queen; Hughes v the Queen (Spence & Hughes) (unreported, 2 April 2001) the Privy Council expressed the view that: 3|Page HCCRC NO. 69 OF 2013 RULING

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“In order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judiciallyprescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. There should be a requirement for individualized sentencing in implementing the death penalty.” [8] In its Directions in respect of the Muruatetu case the Supreme Court had occasion to reiterate the factors to take into account for purposes of sentencing in a murder case. Thus, at paragraph 18(vii) of the Directions dated 6th July 2021, the Supreme Court listed the following considerations: [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. [9] Even where the Court is convinced that custodial sentence is the most appropriate, it is stated, at Paragraph 5.2.2 of the Judiciary Sentencing Guidelines, 2023 as follows in respect of the offence of murder: 4|Page HCCRC NO. 69 OF 2013 RULING

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5.2.2 The harm caused by such an offence is immeasurable. The sentence is not a measure of the value placed on the life of the victim. Therefore, the assessment of aggravating and mitigating features relating to the offence focusses on culpability. However, the victims’ family may wish to make a statement to the court about the impact of the offence. [10] In the Pre-Sentence Report dated 10th March 2026, it was noted that the accused in now 58 years old and that he readily admits to having murdered his wife. The report further shows that the accused is remorseful and that his children have since forgiven him and are ready to receive him, should he be given non-custodial sentence. Accordingly, a recommendation was made for non-custodial sentence. [11] In this case, I have taken into account the deliberate, premeditated and heinous manner in which the offence was executed by the accused Thus, having taken all the foregoing factors into account, it is manifest that non-custodial sentence is not appropriate in the circumstances. In my consideration, a custodial sentence of 30 years would be appropriate in the circumstances. [12] Accordingly, it is hereby ordered that the accused be and hereby re-sentenced to 30 years’ imprisonment. I have also noted that the accused has been in custody since the date of his arraignment in court on 28th October 2013. It could well be that he has been in custody from the date of his arrest prior thereto. Since the exact date of his arrest is not discernible from the record, it is hereby ordered that the imprisonment term of 30 years be reckoned from the 28 th October 2013 when the accused was first arraigned before court. 5|Page HCCRC NO. 69 OF 2013 RULING

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It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF APRIL 2026 ………………………………. OLGA SEWE JUDGE 6|Page HCCRC NO. 69 OF 2013 RULING

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