Republic v Busuru alias Moreen & 3 others (Criminal Case E017 of 2023) [2025] KEHC 4025 (KLR) (28 March 2025) (Judgment)
Neutral citation:
[2025] KEHC 4025 (KLR)
Republic of Kenya
Criminal Case E017 of 2023
RN Nyakundi, J
March 28, 2025
Between
Republic
Prosecution
and
Juliet Busuru Alias Moreen
1st Accused
Paul Osinde
2nd Accused
Gregory Mayebo Alias Job
3rd Accused
Benjamin Njenga
4th Accused
Judgment
1.This is a joint enterprise mixed statement, direct evidence and circumstantial evidence in which the state arraigned the accused persons in court indicting them with the murder of Ahmed Mohamud Ismail contrary to 203 of the Penal Code which allegedly occurred on 26th June, 2023 at West Indies in Turbo Sub-County.
2.The four accused persons named hereinabove were arraigned before this court and indicted for the offence of murder contrary to section 203 as punishable with death under section 204 of the Penal Code. The brief particulars of the offence were that on the 26th June, 2023 at West Indies IN Turbo Sub-County within Uasin Gishu county, they jointly murdered one Ahmed Mohamud Ismail. Each of the accused person having been informed of the charge and its particulars made a categorical denial of any involvement whatsoever of the offence with which they have been charged by the state. In terms of Art. 50(2)(a) of the Constitution prima facie each of the accused is presumed innocent until the contrary is proved. This therefore necessitated a full blown trial by the Constitutional organ of the state charged with prosecution of criminal cases under Art. 157 (6)&(7) of the Constitution. As a consequence, the prosecution summoned the following witnesses to disapprove the innocence of each of the accused persons;
3.In compliance with Art. 50 (2)(h) of the Constitution, the 1st to 3rd accused persons were represented by Mr. Miyienda whereas Mr. Oduor Evans represented the 4th accused.
The case for the prosecution
4.PW1 Hassan Anwar on oath testified to the effect that. That on 26th June, 2023, he was preparing to attend prayers at a nearby mosque and on his way, his attention was drawn to some screams and unfamiliar noises accompanied with acts of assault of another human being. He became curious and temporarily moved to the scene. That is when he saw the victim of assault Ahmed Ismail being beaten by the accused persons. Apparently, according to PW1 prior to this criminal incident, these are persons who are known to him having had an encounter with each one of them within the West Indies locality. He went on to give some specific incidents of his knowledge which included the first accused person being a house help. Whereas the third accused works as a motorcycle rider and the 4th works as a driver. He was able to witness each one of them applying punches and kicks using their hands and feet. This did not stop there. They went ahead to arm themselves with wire rods and stones which now escalated the whole incident of inflicting multiple injuries to the deceased. Some of the key actors in the incident of assault were yet to be arrested as at the time, the indictment was preferred against the accused persons. It was further the testimony of PW1 that the 4th accused was at one time pushed away from the conflict by himself but that the furthest he could go was to disarm him from continuing to hold the stone which was an additional weapon aimed at inflicting severe harm. As for the 1st accused, PW1 gave the chain of events that he saw him sit on the top of the deceased and simultaneously placing his hands around his neck and performing acts of strangulation. In all, PW1 could hear the accused persons allege that the deceased had stolen a mobile phone and they have other members of the public cheering up the accused persons to continue inflicting the actual physical harm against the victim. The witness in the course of the incident left for the mosque only to run later at 4PM that the victim had succumbed to death due the injuries suffered on the material day.
5.PW2 Maimuna Ali testimony was to the effect that on 26th June, 2023 she was at her shop when she heard screams from the members of public. She stepped out her shop and saw a suspect who had been arrested with an allegation of having stolen a mobile phone from a student. In a quick action she decided to record the incident using her mobile phone as the shouts of “thief! thief! “thief!” rage the air. In the course of her recording, some members of the public had informed the police who visited the scene of the crime but she continued documenting the incident electronically. It was this electronic video recording which was later followed up by the investigation officer as one of the tools to trace the suspects. In her evidence, on being shown the video clips, she positively identified the accused persons as the ones she saw at the scene. In addition, PW2 confirmed that they were familiar faces within the area.
6.PW3 was Faith Ahmed on oath who told this court that on the material day near the mosque he saw the deceased being beaten by the members of the public and in a little while, he saw the clan elder (PW4) at the scene. He also confirmed to court that on arrival at the scene he saw a somali boy being beaten and in this he could single out the 2nd and 3rd accused persons. As one of the local administrators, he took the liberty to inform the police who visited the scene on thereafter, the report was received and acknowledged.
7.PW5 was Dr. Macharia Benson the Pathologist who testified to having received and examined the body of Ismael Mohamud on 27th June, 2023. During the post mortem examination, it was established that the deceased had sustained the following:a.Brant right handb.Blood clots around the upper lipc.Right supraorbital borne 3x2 CMd.4x2 cm bruise lateral to the left eyee.Right upper trunk bruises, linear with soft tissue haematomaf.No defence wounds.g.Left temporal scalp contusionh.Extensive subdural of the whole brain
8.As a result of the pathological examination, formed the opinion that the cause of death was severe head injury due to blunt force trauma. The post mortem examination report was admitted in evidence as an exhibit in support of the prosecution case.
9.PW6 NO. 83189 corporal Chrispin otieno rendered his evidence as the investigating officer who recorded witness statements from witnesses, secured the video recording which had been used to capture the chain of events of the deceased being assaulted by a mob on allegations of stealing a mobile phone. The police detective further told this court that the video recording facilitated the arrest of the suspects, that on interrogation of the first and second suspects, they admitted being part of the gang at West indies assault scene. On further interrogation, the 1st accused allowed the investigation team to visit her house where they recovered a red pullover and a blue jeans she was wearing on the material day. The exhibits were recorded in the inventory and produced as exhibits to firm up the case for the prosecution on identification. The witness in addition told the court that he traced and effected an arrest against the 3rd accused who was wearing a black leather jacket during the commission of the crime. The investigating officer in his testimony did not stop there. He traced and arrested the 4th accused. As a consequence of all these gathering and collection of information, relevant to the investigation, he also retrieved the mobile phone from PW2 which was used to record the incident. This was forwarded to the cybercrime department for analysis and a report to that effect was admitted in evidence against the accused persons.
10.PW7 PC Stephen Ikua also reaffirmed material evidence as adduced by PW6. In supplementing the investigation evidence, PW7 told the court that with the assistance of informers and other witnesses at the scene four suspects were arrested and arraigned in court as suspects of the murder against the deceased. That the piece of evidence from the video recording provided a key link to place the accused persons at the scene.
11.PW8 Inspector Daniel Kieni, a cybercrime expert told the court on the role he played in undertaking and analysis of a motorora mobile phone which had been used to document the scene of murder on 26th June 2023. He produced a mobile forensic examination report dated 6th July, 2023 indicative of the assault upon a suspect and the suspects who committed the offence. In the same testimony, PW7 also produced a certificate in compliance with section 65(8) as read with section 106 (b)(4) of the Evidence Act. the video clips with all markings of identification of the suspects before this court were also admitted as electronic evidence in support of the prosecution case.
12.With that material evidence under section 306 of the Criminal Procedure Code, each of the accused person was placed on his or her defence.
The defense case
13.The first accused, Juliet Ayieta in his defence denied the offence and told the court that on the material day at around 4PM she heard screams from members of the public. She left her duties as a waiter at West indies hotel that is when he saw a young man being beaten. She also joined the other members of the public. In the course of the events, there were many people whom she did not know and after the incident she left for her homestead only to be arrested that she was one of the suspects who was beating the deceased. She alleged that the assault upon the deceased was a matter of the public and a big mob which was alleging that he had stolen a mobile phone.
14.DW2 – Paul Osinde also on oath denied the offence and told the court that on the material day he came into contact of a big mob of people who were assaulting the deceased. He alleged that he had gone to that scene because he had been hired by the clan elder who wanted to visit the area to intervene between the suspected thief and a hundred people who were surrounding him at the scene. It was his defence that he was part of the rescue theme that was separating the mob from the deceased. In addition, the accused told the court that his involvement in the conflict was that of saving a life of the victim of assault from the mob. That he was never the person responsible for inflicting injuries on the victim.
15.DW3 Gregory Mayebo likewise told the court that he did not know the deceased and never was he involved in inflicting the fatal injuries as alluded to by the prosecution witnesses. He acknowledged being at the scene because it was nearby the stage where he operates hi motorcycle for hire. According to DW3, his attention was drawn by loud screams from a location near west indies area near the mosque and on arrival with the clan elder he found a big mob of more than fifty people who were inflicting injuries upon the suspected thief. That his role was to only make attempts to intervene to save a life of the victim but he was overwhelmed by the mob. In his evidence, the accused told the court that his presence was to rescue the deceased from the mob.
16.Finally, the 4th accused Benjamin Njenga told the court that on the material day, he went to a garage near west indies and in the course he took some alcoholic drinks. He denied the offence as being part of the gang which killed the deceased. He further denied that he was the person positively identified as wearing the red shoes in the video clip admitted in evidence in support of the prosecution case.
17.The accused having been placed on their defense, each of them denied the offence of having any involvement in the murder of the deceased.
Analysis and determination
18.The ingredients of what constitutes the offence of murder are set out in section 203 of the Penal code which provides that the offence is committed when a person is found to have been criminally involved in the death of another human being and that in doing so, the act was unlawful and that the accused had malice aforethought.
19.In Anthony Ndegwa Ngarivs Republic [2014] eKLR the Court of Appeal sitting in Nyeri held:
20.It is a fundamental principle of criminal law that the burden of proving an offense rests with the prosecution, which must establish all elements of the charge beyond reasonable doubt. This principle is expressly codified in sections 107, 108, and 109 of the Evidence Act, which govern the proof requirements for facts pertaining to the alleged offense. This burden of proof remains with the prosecution throughout the entirety of the trial proceedings.
21.The Supreme Court of Nigeria in Bakare vs State (1985) 2 NWLR stated as follows:
22.The standard of proof beyond a reasonable doubt represents the highest evidentiary threshold in our legal system. This stringent requirement exists precisely because an individual's freedom hangs in the balance during criminal proceedings, reflecting our judicial system's commitment to protecting liberty interests. In the locus classicus case of Denning J, as he then was in Miller Vs Ministry of Pensions [1947] 2 AII ER 372 he stated as follows:
23.The first element concerning the death of the deceased is not in dispute. PW5 Dr. Macharia Benson conducted a post-mortem examination on the body of Ahmed Mohamud Ismail. His findings documented various injuries, including bruises and extensive subdural hematoma of the whole brain. He concluded that the cause of death was severe head injury due to blunt force trauma.
24.Regarding the second element, that every homicide is unlawful unless authorized by law or excusable under the law See Sharm Pal Singh [1962] EA 13, see also Guzambizi Wesonga v Republic [1948] 15 EACA 63 where the court held:
25.It is evident from the post-mortem report that the deceased died from an unnatural cause. The injuries described were clearly inflicted by another person or persons through violent means. There is no suggestion that the deceased's death was accidental or from natural causes. In the absence of any evidence to the contrary, this Court finds that the death of the deceased was unlawful.
The element of identification
26.The next question pertains to the third element: whether the prosecution has established beyond reasonable doubt that the accused persons committed the unlawful act that caused the death of the deceased. This requires careful scrutiny of the evidence linking each accused to the commission of the offense.
27.PW1 Hassan Anwar testified that he witnessed all four accused persons assaulting the deceased. He specifically observed each accused applying punches and kicks, and later arming themselves with wire rods and stones to escalate the assault. PW1 also provided a detailed account of the first accused sitting on top of the deceased, placing his hands around the deceased's neck, and performing acts of strangulation. PW1's evidence establishes a direct link between the four accused persons and the assault that resulted in the deceased's death.
28.PW2 Maimuna Ali corroborated PW1's testimony through her electronic recording of the incident, which she later provided to the investigating officer. Upon viewing the video clips, she positively identified all four accused persons as participants in the assault. This electronic evidence is particularly compelling as it provides objective, contemporaneous documentation of the events that transpired, thereby eliminating concerns about mistaken identity or faulty recollection. The video recording serves as independent verification of the eyewitness accounts and significantly strengthens the identification evidence against the accused persons.
29.PW3 Faith Ahmed similarly testified to witnessing the deceased being beaten by members of the public, specifically identifying the second and third accused as participants in the assault. This independent account further corroborates the identification evidence against at least two of the accused persons.
30.When dealing with recognition, the English case of turnbull-and-another-etc-cca-9-jun-1976/ R vs Turnbull (1977) QB 224 is useful in this regard: -
31.The investigating officers, PW6 Corporal Chrispin Otieno and PW7 PC Stephen Ikua, gathered additional evidence linking the accused to the crime, including the recovery of clothing items from the first and third accused that matched those seen in the video recording of the incident. This physical evidence corroborates what was captured in the electronic recording. Furthermore, PW8 Inspector Daniel Kieni, a cybercrime expert, conducted a thorough analysis of the video recording and produced a forensic examination report dated 6th July, 2023, which confirmed the identification of the accused persons at the scene. PW8 also produced a certificate in compliance with section 65(8) as read with section 106(b)(4) of the Evidence Act, ensuring the admissibility and reliability of the electronic evidence. The video clips with marked identification of the suspects were admitted as electronic evidence, providing irrefutable visual confirmation of the accused persons' involvement in the assault.
Whether each of the accused persons participated in the commission of the crime of murder against the deceased.
32.The offence before court in its information alleges that the accused persons jointly committed the offence. In determining whether or not they have played any role in the crime charged, this court has to revert to section 20 of the Penal code which provides on the principles of criminal responsibility which is applicable to the facts of this case. It provides as follows:
33.Similarly, section 20 must be read conjunctively with section 21 since the accused persons are charged jointly with the commission of the same offence hence the consideration of the doctrine of common intention. The Code provides as follows:
34.For this element to apply to the facts of this case, there must be prove from prosecution evidence that they had formed a common intention, either before or in the course of events to prosecute an unlawful purpose in conjunction with one another. In this respect, what is required is evidence pointing towards each individual accused person was infact part of and an active group of two or more people on 26th June, 2023 at West Indies sharing a common purpose with the other or others not before court in the execution of the homicide offence. The case of Ismail v. Uganda Cr. Appeal No. 6 of 1978 clearly explains on the characteristic features of the doctrine of common intention in the following language:
35.In recognition of the relevance of the doctrine of common intention to apportion criminal liability, the court in Abdi Ali v Republic 1956 EACA 573, the Eastern Court of Justice held:
36.In so far as the facts of this case is concerned, the chronology of events on the material day, the prosecution adduced evidence to prove participation from the testimony of PW1, PW2, PW3, PW6, PW7 & PW8. Regarding PW1, on the fateful day of 26th June, 2023, in broad daylight, he was prepared to go for prayers at the mosque located in West Indies. That is when he witnessed a group of people, some screaming and others were assaulting a victim of theft who later succumbed to death. It was his evidence that the accused person before court were actively involved in inflicting the physical harm while armed with some metal rods, stones and also manipulating their hands and feet to unlawfully occasion the severe injuries. In the same crime scene, PW2 who operates a shop acknowledged having heard some screams and on stepping out, she saw the deceased being assaulted by the accused persons before court on the basis that he had stolen a mobile phone. She took upon herself to engage his mobile device which she documented the events of the assault between the accused person and the deceased. The video recording was later to be a subject of further investigations by PW8 who carried out a forensic analysis and the authenticity of the evidence captured by PW2 within the statutory provisions of section 78(A) as read with section 106(B)(4) of the Evidence Act. His further evidence was that:a.Videos-MP4 format serial number 1-7 were captured using the device6/exhibit on the 26th June, 2023 between times of 10:06 am to 10:13 am of 26th June, 2023 capturing events of an assault to a male person by persons in the video stored a DVD for view.b.Videos serial 8-10 are videos MP4 stored by the device internal shared storage, shared on to the whatsapp of exhibit on the 30th June, 2023.c.Images of persons of interest are annexed with the report and on further review by this court, they happen to be the accused persons indicted with the said offence.
37.The law governing admissibility of electronic evidence is guided primarily section by 78 as construed with section 78A of the Evidence Act. For our purposes, we make reference to the admissibility criteria in 78A which stipulates as follows:
38.The focus in this judgment will not escape a statement or so in the provisions of Section 106(B)(4) of the same Act.
39.In assessing admissibility of electronic evidence as generated by PW2, further analyzed by PW8 in the forensic lab at cybercrime department in CID headquarters, I am of the considered view that the evidential weight of the data photographic impressions, the prosecution has satisfied the criteria on its reliability and the manner it was generated, stored and communicated or shared with PW8. There is no evidence that the integrity of the documented video shots by PW2 was interfered with prior to its recovery by PW7 who later prepared the exhibit memo for onward transmission to PW8 for extraction and certification of it in the issuance of the Electronic Certificate in respect of section 106(B)(4) of the Evidence Act. This Certificate is to certify that the Electronic process in which the photographs or other statements were generated ensured the accuracy of the evidence for purposes of due process as stipulated in Art. 50 on fair trial rights of our constitution.
40.There is no doubt that the corroborated evidence on the doctrine of common intention and the participation of the accused persons as defined within the scope of section 20 and 21 of the Penal Code has been duly discharged by the evidence from the prosecution witnesses. To the contrary, the accused persons in their defense made every effort to disassociate themselves with the defense but unfortunately I find the evidence from PW1, PW2, PW3, PW4, PW6, PW7 and PW8 quite genuine, persuasive and credible in providing the elements of the standard and burden of proof of beyond reasonable doubt within the dicta of the Miller case (Supra). The electronic evidence is independent and implicates the individual accused persons in the commission of the offence in which the deceased suffered fatal injuries. In the instant case, I have subjected the evidence by the prosecution on the participation of the accused persons in the commission of the crime of murder to very close scrutiny and weighing it alongside with their respective defenses and I dare rule that their vehement denial has not controverted the whole of the prosecution’s case.
Malice aforethought
41.The fourth element, malice aforethought, is defined under Section 206 of the Penal Code. The provisions of section 206 of the Penal Code states as follows in relation to malice aforethought: -
42.In the case of; Tubere s/o Ochen {1945} 12 EACA 63 the court stated that in considering whether there was malice aforethought, the court will look out for characteristics such as; the nature of the weapons used, the manner it was used to inflict the injuries, the parts of the body targeted whether vulnerable or not, the nature and gravity of the injuries, and the conduct of the accused before, during and after the incident. (See also Dafasi-Magayi v Uganda {1965} 1 EA 667).
43.I am also guided by the Court of Appeal decision in Bonaya Tutu Ipu & another v Republic [2015] eKLR in which the court stated as follows on prove of malice aforethought;-
44.In the present case, the nature and extent of injuries inflicted on the deceased, as detailed in the post-mortem report, strongly indicate an intention to cause death or grievous harm. The evidence shows that the accused persons, acting in concert, subjected the deceased to a prolonged assault using both their hands and feet, as well as weapons in the form of wire rods and stones. The severity of the assault, targeting vital areas including the head, demonstrates that the accused persons must have known their actions would likely cause death or grievous harm.
45.This was a case of inflicting multiple injuries to the deceased by the four accused persons simultaneously applying all manner of excessive force in absence of any justification or excuse as stipulated in section 17 and section 207 as read with section 208 of the Penal Code on self-defense and provocation. The facts of this case are in line with the principles in People v Douglas (1985) I.L.R.M. 25 and also Hyam v DPP (1975) A.C. 55 in which the courts made the following observations relevant to infer malice aforethought:
46.It will be noted from the chain of events as presented by the prosecution with regard to the fateful date of 26th June, 2023, there was a manifestation for this court to conclude that the accused persons unlawful acts of assault reflects that they had the knowledge that through their feloniuous attack upon the deceased, the natural and probable consequences was either he suffers grievous harm or death was likely to ensue. Unfortunately for the deceased what evolved thereafter was that he suffered serious injuries resulting in simultaneous death which leads to the inescapable conclusion that the criminal homicide as defined under section 203 of the Penal Code with the key element of malice aforethought. The circumstances as deduced from the electronic evidence alluded to by PW2, PW7 and PW8 manifest extreme indifference by the accused persons to the value of human life which is guaranteed and protected under Art. 26 of the Constitution on the right to life.
47.The defense put forward by each of the accused persons amounted to bare denials of involvement. They did not offer any alibi or alternative explanation for the evidence presented against them. When weighed against the prosecution's evidence, which includes direct eyewitness accounts, electronic video recordings of the incident, forensic analysis of those recordings, and physical evidence recovered from the accused persons, the defense case fails to raise a reasonable doubt as to the guilt of the accused persons. The electronic evidence in this case provides compelling, objective documentation of the accused persons' actions that cannot be explained away by mere denial. This technological corroboration significantly strengthens the identification evidence and provides the court with a reliable basis upon which to determine the accused persons' culpability.
48.It is notable that the accused persons' actions were reportedly motivated by an allegation that the deceased had stolen a mobile phone. Even assuming this allegation was true, it cannot justify the extreme violence employed by the accused persons. Their actions far exceeded any reasonable measure of self-defense or citizen's arrest, and indeed constituted a serious crime in itself.
49.The evidence shows that this was a case of mob justice, where the accused persons took the law into their own hands with fatal consequences. Such extrajudicial actions undermine the rule of law and the proper administration of justice in our society. They cannot be condoned under any circumstances.
50.In a nutshell, besides the direct evidence on how this homicide was committed, the principles on circumstantial evidence in Ernest Asami Bwire Abanga alias Onyango v. Republic CACR No. 32 of 1990 are also applicable in which the court held as follows:
51.In the instant case, the prosecution witnesses potrayed the following circumstances in its endeavor to establish the charge of murder against the accused personsa.Motive: That is to say there was an allegation that the deceased had committed an offence of theft of a mobile phone and the accused jointly in exclusion of the members of the public or the mob at the scene got hold of the deceased and started inflicting physical harm and no one is able to understand whether it was punishment for the crime he committed or it was to disempower him so that they could effect an arrest. The accused persons were acting in concert with such animosity as can be deduced from the electronic evidence of the video clips. It is trite law that proof of motive might not be the primary element in a case of murder. However, when one looks at the circumstances motive if properly established assumes great significance and will definitely provide an important corroborative link in the chain of incriminating circumstances to strengthen the case of the prosecution.b.It is also a cardinal principle of criminal jurisprudence that for the prosecution to establish the offence of murder beyond reasonable doubt, the basic facts from which a reasonable inference can be drawn which are within the special knowledge of the accused must manifest malice aforethought. Applying the principles in section 206 of the Penal Code, on the fateful afternoon from the evidence it transpires that the accused persons consistently continued to assault the deceased and any cries or screams to be forgiven from further serious harm went unanswered from each one of them. On has to watch the horror scheme as depicted in the video, photographic evidence to draw an adverse inference that the unlawful acts against the deceased were accompanied with malice aforethought
52.As a consequence of the discussion made above, I of the view that the prosecution has established and proven the chain of incriminating circumstances against the accused persons beyond the shadow of doubt for this court to find each one of them guilty for the offence of murder contrary to section 203 as punishable under Section 204 of the Penal Code to additionally enter a verdict of conviction and culpable for the offence. There shall be a sentencing hearing on 28th March, 2024.
Ruling On Sentence
53.The four accused persons, Juliet Busuru alias Moreen, Paul Osinde, Gregory Mayebo alias Job, and Benjamin Njenga, stand convicted of murder contrary to section 203 as read with section 204 of the Penal Code. The conviction stems from events that occurred on 26th June, 2023, at West Indies in Turbo Sub-County, where the accused persons, acting in concert, assaulted and killed Ahmed Mohamud Ismail following allegations that he had stolen a mobile phone. After a thorough trial, this court found that the prosecution had established beyond reasonable doubt all elements of the offense, resulting in the judgment of conviction delivered earlier. It now falls upon this court to determine an appropriate sentence that reflects both the gravity of the offense and the individual circumstances of each convict.
54.The parties through their respective counsel submitted on mitigating factors with the state recommending a custodial sentence of not less than 50 years whereas the accused persons prayed for a lenient sentence.
55.Ms. Kirenge drew the Court's attention to the deplorable manner in which the deceased met his death. She submitted that the accused persons outnumbered the deceased, giving him no chance against them; the deceased was stoned during the beating; the trio kicked, beat up, and choked the deceased; when he tried to run, the accused persons relentlessly pursued him to "discipline" him; and the post-mortem revealed extensive injuries including blood clots, facial injuries, soft tissue damage, and no defensive wounds, indicating significant suffering before death.
56.She argued that the Courts have consistently taken a firm stance against mob injustice, To reinforce this position, she cited Chengo & 4 others v Republic (2023), where the Court described mob justice as "unlawful," "uncouth," "barbaric," and having "no place in this century."
57.Under section 204 of the Penal code, punishment for murder, upon conviction is death. In S v Montsho 2014 JDR 0743 (GNP) the Court imposed life imprisonment on a 27-year old man who was found guilty of the murder of a three-year-old child. Thulane AJ observed that:
58.The court is guided by the fundamental purposes of sentencing as provided for in the sentencing policy guidelines of the Judiciary, 2023 which can be pursued by the court in applying one or more of the following eight objectives: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.g.Reconciliation: To mend the relationship between the offender, the victim and the community.h.Reintegration: To facilitate the re-entry of the offender into the society.
59.Further, in accordance with the landmark Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the mandatory death sentence previously prescribed for murder under section 204 of the Penal Code has been declared unconstitutional, giving courts discretion to impose sentences commensurate with the specific circumstances of each case. This discretion must be exercised judiciously, with careful consideration of established sentencing principles, statutory guidelines, and constitutional imperatives regarding the right to life and human dignity.
60.On behalf of the first, second, and third accused persons, Mr. Miyienda presented mitigating factors for the court's consideration. He submitted that the accused persons are first offenders with no previous criminal records. He further stated that they are remorseful for their actions and have expressed regret for participating in the incident. Mr. Miyienda urged the court to consider the circumstances of the offence and to consider that the accused persons have family responsibilities and dependents who rely on them for support.
61.For the fourth accused, Mr. Oduor similarly highlighted that his client is a first offender with no previous convictions. Mr. Oduor also emphasized his client's remorse and the impact of incarceration on his family and dependents.
62.The Constitutional Court of South Africa in State v. Makwanyane (1995) CCT/3/94 remarked as follows on mitigation and aggravating factors in sentencing:
63.Several aggravating factors are evident in this case. First, this was a case of mob justice where the accused persons, along with others not before the court, took the law into their own hands based on an allegation of theft. Such extrajudicial actions undermine the rule of law and the proper administration of justice, which are foundational pillars of our constitutional democracy. The court notes with concern the rising incidents of mob justice in our society, which represent a dangerous regression to primitive forms of "justice" that have no place in a society governed by the rule of law.
64.In R v Engert (1995) 84 A Crim R 67 at 68, Gleeson CJ observed:
65.Turning to mitigating factors, I note that all four accused persons are first offenders with no previous criminal records. This factor weighs in their favor as it suggests that they do not have established patterns of criminal behavior. However, I must also consider that their defense during trial did not demonstrate genuine remorse, as each accused person attempted to distance themselves from the crime and denied any wrongdoing despite compelling evidence to the contrary.
66.In Veen v. The Queen (No. 2) (1988) 164 CLR 465, it was stated:
67.Having carefully weighed all factors in this case, including the aggravating circumstances of mob justice, the brutality of the crime, and the deliberate participation of each accused person in the assault, against the mitigating factor that they are first offenders, I find that the gravity of this offense demands a substantial custodial sentence. The actions of the accused persons have not only robbed a man of his life but have also undermined the rule of law and the proper administration of justice. Their participation in mob justice represents a dangerous disregard for the constitutional rights of others and the established legal processes for addressing alleged crimes.
68.For these reasons, and taking into account all relevant factors cumulatively, I hereby sentence each of the four accused persons, Juliet Busuru alias Moreen, Paul Osinde, Gregory Mayebo alias Job, and Benjamin Njenga, to twenty-five (25) years imprisonment for the offense of murder contrary to section 203 as read with section 204 of the Penal Code. However, in accordance with section 333(2) of the Criminal Procedure Code, I hereby order that the periods already spent in custody be deducted from their respective sentences as follows: Benjamin Njenga to receive a deduction of five (5) months spent in custody, Gregory Mayebo alias Job to receive a deduction of nine (9) months spent in custody, and both Paul Osinde and Juliet Busuru alias Moreen to each receive a deduction of one (1) year and eight (8) months spent in custody.
69.It is so ordered.
DATED AND SIGNED AT ELDORET THIS 28TH DAY OF MARCH, 2025………………………………………….R. NYAKUNDIJUDGE