Republic v Aulencia Kathambi Nyamu & 1 other

5. The 2nd accused on his part mitigated that he was a minor at the time of the offence and only responded to protect his mother. 6. The Pre-sentence report in respect of the 2nd accused shows that the victims were of the view that he responded to the 1st accused’s alarm when she disagreed with the deceased who was her lover. Further, that the 2nd accused has been living harmoniously in the village without being in conflict with the law. 7. The states on its part opposed a non-custodial sentence and urged the court to consider a custodial sentence as prescribed by law. 8. I have considered the mitigation by both accused persons, the pre-sentence reports the submissions by the State, and the circumstances under which the offence was committed. I am also mindful that sentencing is intended not only to punish but also to achieve rehabilitation, deterrence, accountability, and restorative justice. 9. Sentencing serves the purposes of punishment, deterrence, rehabilitation, accountability, and restorative justice. The death penalty is no longer mandatory for murder, and the court retains full discretion in sentencing, guided by the circumstances of each case and of each offender (Francis Karioko Muruatetu & Another v Republic [2017] eKLR; Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR). Aulencia Kathambi Nyamu - 1st Accused 10. The 1st Accused is an adult and a first offender who has expressed remorse. While these are mitigating factors warranting leniency, the gravity of the offence of murder and the resultant loss of life is a weighty aggravating factor that, in the court's view, does not justify a non-custodial sentence for the 1st accused. Section 204 of the Penal Code provides a death sentence for murder. 11. The role of the court is to balance the scales of justice. On the one hand are the victims of the offence who have been robbed of a husband and a father and on the other is the convict calling for leniency. I have considered that the Accused was in pre-trial custody for a period of 2 years before being granted bond a period which I have already deducted before pronouncing the final sentence. 12. The 1st Accused, Aulencia Kathambi Nyamu, is hereby sentenced to 12 years imprisonment, to run from the date of conviction being 7th March 2025. Dennis Kibaki- 2nd Accused 13. The 2nd Accused mitigated, and the Pre-Sentence Report confirms, that he was a child (minor) at the time of the commission of the offence. This is a critical and distinguishing factor in sentencing, separate and apart from the considerations applicable to the 1st accused, for the following reasons. 14. Article 53(1)(f) of the Constitution of Kenya, 2010 provides that a child shall not be detained, except as a measure of last resort, and then only for the shortest appropriate period of time. Article 53(2) further mandates that a child's best interests are of paramount importance in every matter concerning the child, including in sentencing. 15. Section 191 of the Children Act, 2022 states as follows: (1) In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12336/eng@2026-07-31 2

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(a) by discharging the offender under section 35(1) of the Penal Code (Cap. 63); (b) by discharging the offender on his entering into a recognisance, with or without sureties; (c) by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap. [64]); ... 16. This position was reafirmed by the Court of Appeal in OON (a minor) v Republic [2004] KECA 59 (KLR) where the court stated as follows: “ We now proceed to consider what would be an appropriate sentence in this case. The appellant was below the age of 18 years when the offence took place. He was then a child under the Children Act and the court should have proceeded to sentence him under the Children Act Section 191(1) of the Children Act provides ways in which the court may deal with a child offender.” 17. The Pre-Sentence Report supports a finding that the 2nd accused is amenable to reform, he has lived harmoniously within his community since the offence, has had no further conflict with the law, and his participation in the offence arose reactively, in response to an alarm raised by his co-accused, rather than from premeditated design. These factors, taken together with his minority at the time of the offence, persuade the court that his prospects of rehabilitation outside a custodial setting are real and substantial. 18. I am satisfied that imprisonment would not serve the best interests of the 2nd Accused, would run contrary to Article 53(1)(f) of the Constitution and Section 191 of the Children Act, 2022, and would not constitute a measure of last resort in the circumstances of this case. 19. Accordingly, the 2nd Accused, Dennis Kibaki, having been a minor at the time of the commission of the offence, is hereby sentenced to serve probation for a period of 3 years. 20. Each Accused person has a right of appeal against both conviction and sentence within fourteen (14) days. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 31ST DAY OF JULY, 2026. .......................... R. LAGAT - KORIR JUDGE Ruling delivered in the presence of the Accused, Ms Rukunga for the Republic; Muriuki (Court Assistant) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12336/eng@2026-07-31 3

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