REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL CASE NO. E004 OF 2021 REPUBLIC VERSUS DAVID MUTUKU ……..ACCUSED NDEMWA …………..……………. SENTENCING 1. The accused herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 6th August, 2020, at Maseweni village in Yatta sub-county within Machakos County murdered Martha Mbele Thambu. 2. He pleaded not guilty and the prosecution called six (6) witnesses. In a judgment delivered on 12 th June, 2026. This Court found the accused guilty and convicted him as charged. 3. Sentence hearing was reserved to a later date so that this Court could obtain a pre-sentencing report from the probation office. An order to that effect was made. 4. Unfortunately, to date, neither the Court nor counsel for the accused has been furnished with the pre-sentence report despite the considerable period that has lapsed since judgment was delivered. Given the passage of time, this Court takes the view that the absence of a pre-sentence report is not a bar to the pronouncement of sentence in this HCCR. NO. E004 OF 2021 Page 1
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matter. It is trite that a pre-sentencing report is not a mandatory requirement when a court is exercising its sentence discretion. Even where such a report is available, it contents are persuasive rather than binding. The discretion to impose an appropriate sentence remains exclusively vested in the Court. In the case of Republic v John Kimatu Mwanzia [2016] KEHC 2141 (KLR) it was held: “In addition, the role of a pre-sentencing report is to guide the Court in arriving at an appropriate sentence in the exercise of its discretion, however, while having regard to pre-sentencing reports, the Court must never abdicate its responsibility to pass sentence according to the law.” (Emphasis mine) 5. Further the Judiciary sentencing guidelines equally underscore the persuasive nature of a pre-sentencing report. Paragraph 22.12 of the Sentencing Policy Guidelines, states: “To pass a just sentence, it is pertinent to receive and consider relevant information. The court should, as a matter of course, request for pre-sentence reports where a person is convicted of a felony as well as in cases where the court is considering a non-custodial sentence…Whilst the recommendations made in the pre-sentence reports are not binding, the court should give reasons for departing from the recommendations.” (Emphasis mine) 6. Consequently, notwithstanding the absence of a pre- sentencing report, the Court will proceed to determine the appropriate sentence. HCCR. NO. E004 OF 2021 Page 2
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7. To reach that end, this Court is guided by some principles. These were succinctly laid down by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) as follows: “71. ... the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge: (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 gender-based violence; offence in response to (f)remorsefulness of the offender; (g)the possibility of reform and social re-adaptation of the offender; (h)any other relevant. factor that the court considers 72.We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process.” 8. I have also appraised myself of “The 2016 Judiciary of Kenya Sentencing Policy HCCR. NO. E004 OF 2021 Guidelines” which gives both the Page 3
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objectives and principles of sentencing. In particular, the objectives are: 1. Retribution: To punish the offender for his/her criminal conduct in a just manner. 2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences. 3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person. 4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs. 5. Community protection: To protect the community by incapacitating the offender. 6. Denunciation: To communicate the community’s condemnation of the criminal conduct.” (Emphasis mine) 9. In the present case, the evidence established that the deceased died as a result of strangulation. The deceased was an elderly woman aged nearly eighty (80) years and therefore particularly vulnerable. The accused, a much younger and physically stronger individual, deliberately applied force to her neck, causing her death. The killing was senseless and wholly unjustified. After committing the HCCR. NO. E004 OF 2021 Page 4
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offence, the accused covered the deceased's body with a blanket and fled the scene, conduct which demonstrates an attempt to conceal the offence, rather than seek help or report the incident. The nature of the attack, the vulnerability of the deceased, the manner in which the offence was committed, and the conduct of the accused immediately thereafter constitute significant aggravating factors. The deceased undoubtedly suffered a painful and undignified death. 10. In mitigation, learned counsel for the accused submitted that the accused is remorseful, that the case against him was founded on circumstantial evidence, and that he has been in custody since his arrest. Counsel further submitted that the accused has reformed and is ready for reintegration into society and urged the Court to impose a lenient sentence. The accused personally informed the Court that he is the sole breadwinner of his family and that his parents are elderly. He also apologized to the Court for the offence. 11. I have carefully considered those mitigating factors. I also take into account that the accused is a first offender and the age of the accused. However, having observed the accused during the proceedings, I am not persuaded that he demonstrated genuine remorse for his actions. While an apology was tendered, remorse must be assessed from the totality of the offender's conduct and demeanour before the Court. In the circumstances of this case, I attach limited weight to the assertion of remorse. HCCR. NO. E004 OF 2021 Page 5
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12. Having weighed the aggravating and mitigating circumstances alongside the sentencing objectives set out in the Sentencing Policy Guidelines, I am satisfied that this is a case that calls for a substantial custodial sentence. The sentence imposed must serve the objectives of deterrence, retribution, denunciation, rehabilitation and community protection. The Court must send a clear message that violence directed against vulnerable members of society, particularly elderly persons, attracts serious penal consequences. The sanctity of human life is a foundational value protected by the Constitution and the criminal law, and unlawful taking of life must be met with an appropriate and proportionate response. 13. The deceased in this case was an elderly woman approximately eighty years of age. Rather than being protected and cared for during her advanced years, she was violently deprived of her life. A sentence that reflects society's condemnation of such conduct is therefore warranted. The Court must also underscore that acts of violence against women and vulnerable persons cannot be tolerated in a civilised society governed by the rule of law. 14. I find that, given the gravity of the offence, the manner in which it was committed, and the vulnerability of the deceased, a non-custodial sentence is plainly unavailable. While the Court has considered the accused's youth, his status as a first offender, and the possibility of rehabilitation, those factors are substantially outweighed by the aggravating circumstances of the case. A lengthy HCCR. NO. E004 OF 2021 Page 6
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custodial sentence is necessary to mark the seriousness of the offence, deter similar conduct, protect the public, and uphold confidence in the administration of justice. 15. Accordingly, I sentence the accused, David Mutuku Ndemwa, to thirty (30) years imprisonment. Pursuant to Section 333(2) of the Criminal Procedure Code, the period spent in custody during trial shall be taken into account when computing the sentence. 16. Orders accordingly. Delivered, Dated and Signed virtually this 6 th day of August, 2026 RHODA RUTTO JUDGE Court Assistant: Wabwire HCCR. NO. E004 OF 2021 Page 7
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