REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NANYUKI CRIMINAL CASE NO 14 OF 2018 REPUBLIC .……………………….…………………………… PROSECUTOR VERSUS SAMMY WEKESA SIMIYU …………………..………..….…….. ACCUSED RULING ON SENTENCE 1. SAMMY WEKESA SIMIYU (hereinafter the Accused) is charged with murder contrary to Sections 203 and 204 of the Penal Code. The particulars were that on the day of 25th day of August 2018, at Muthaiga area of Wiyumiririe Trading Centre in Laikipia Central Sub County within Laikipia County jointly with others not before court murdered Michael Ngunjiri Kihumba alias Dedan Wachiuri. 2. The Accused was tried and convicted of murder. Criminal Case No. 14 of 2018 Page 1 of 7
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3. The matter is before court for sentencing. 4. The court has a wide discretion on the question of sentence. However, the said discretion cannot be used by the Court of law in a fanciful and whimsical manner. Every case has to be decided on the consideration of its circumstances including the gravity of offence, victim impact, the need to deter crime and the rehabilitation of an offender among others. The discretion does not open a carte blanche for a whimsical decision on the appropriate sentence. In The Nature of the Judicial Process – Yale University Press 1921 Ed page 144 BENJAMIN N. CARDOZO puts it in the following words; “The judge even where he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of goodness. his own ideal of beauty or of He is to drawn his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated Criminal Case No. 14 of 2018 Page 2 of 7
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benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life’. . .” 5. The question then that I have to grapple with at this stage is what would constitute an adequate, appropriate and just sentence in the circumstances of this case? In the case of STATE OF MADHYA PRADESH v MEHTAAB CR. APPEAL NO. 290 OF 2015, the Supreme Court of India held: “It is the duty of the court to award just sentence to a convict against whom charge is proved. While every circumstances mitigating may be or given aggravating due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and society. It is also the Criminal Case No. 14 of 2018 Page 3 of 7
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duty of the court to duly consider the aspect of rehabilitating the victim.” 6. The objectives of sentencing as stated in paragraph 4.1 of the Judiciary Sentencing Policy Guidelines can be summarized as follows: a) To prevent the occurrence of crime; b) To punish the transgressor and the criminal; c) To rehabilitate the transgressor and the criminal; d) To compensate the victim; e) To deter the offender from committing any criminal acts in the future as well as other people from committing similar offences and f) To protect the community condemnation of the convict. 7. The importance of sentence was emphasized by the Supreme Court of India in the case of ANTONY PAREIRA v STATE OF MAHARASHTRA (2 AIR 2012 SC 3802) where it stated stated: “70. Sentencing is an important task in the matter of crime. One of the prime objectives of Criminal Case No. 14 of 2018 Page 4 of 7
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the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles; twin objective of the sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. 8. I have considered the mitigation put forth by the Accused through Prosecution’s Learned sentiments Counsel as Kendi expressed by and the Learned Counsel Ms Kimani for the State. I have also considered the nature of the offence and note the needless loss of Criminal Case No. 14 of 2018 Page 5 of 7
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life, a breach of the deceased’s highest fundamental right under the Constitution the right to life. 9. I had the advantage of reading and considering the presentence inquiry report. Further, I am alive to the principles of sentencing as laid out in law, legal principles developed over time by the Courts and the Judiciary Sentencing guidelines. 10. The offence herein is of a most serious nature. The deceased was deprived of life at an early stage of his existence. The loss to his family is profound and the family members will live with this gap through their lives. No doubt deterrent sentence is desirable. 11. In the premises and all factors taken into account I am persuaded that even though the law allows for the application of the death sentence, a lengthy custodial sentence would suffice as guided by the dictum in the Muratetu case which ties the Court’s hands for the shackles of the mandatory death sentence in murder cases. The accused is to serve thirty (30) years imprisonment. Right of appeal explained. Criminal Case No. 14 of 2018 Page 6 of 7
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DATED SIGNED AND DELIVERED AT ELDORET THIS 16TH DAY OF JULY 2026 A.K. NDUNG’U JUDGE Criminal Case No. 14 of 2018 Page 7 of 7
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