Julius Michubu Laibuni v Republic

not know whether the appellant, the deceased and Thuranira had been involved in a fight but he saw an injury on the appellant. 3. Thuranira was on the same day walking to the bus stage when he heard screams. He turned back and saw the deceased being chased by the appellant while stabbing him. The deceased fell and the appellant stood over him. He (Thuranira) picked two stones and asked the appellant to stop stabbing the deceased who was bleeding from his back. It was then that Mutiga arrived and they overpowered the appellant. He noted that the appellant had used a kitchen knife to stab the deceased which knife he identified in court. Police arrived and arrested the appellant and the deceased was taken to hospital where he died the following day. He knew the appellant who was his neighbour. 4. Corporal Antony Leibokhe (PW3) of Mikinduri Police Station in charge of crime took over investigations of the case from a previous officer, bonded witnesses and on perusing the file had noted the report that had initially been received as assault which turned to murder when the deceased died. He produced the knife as part of the evidence in the case. He did not know whether it was the deceased who had the knife initially before it was taken from him by the appellant. 5. Joseph Muriungi Mugambi (PW4-Mugambi), an uncle to the appellant and the deceased received a report on the death of the deceased. He attended post-mortem at Meru General Hospital and identified the body for that exercise. It was he who had shared out land to the appellant and the deceased after their father had died but the appellant had sold his and was accommodated by the deceased. 6. Lawrence Kinyua Muthoni, (PW5) a Government Analyst had received police exhibits including a knife and a blood sample of the deceased. Upon analysis he concluded that the blood sample on the knife matched the blood sample of the deceased. 7. The last prosecution witness was Dr. Brian Kiprop of Meru Hospital. He had post-mortem report on the deceased prepared and signed by his colleague. It was shown in the post-mortem report that the deceased was 32 years old at the time of death and had suffered deep stab wound on posterior aspect of the neck - 2m long and 6cm deep; the body had several injuries on the posterior aspect of the neck and shoulder; there was a deep stab wound on posterior aspect of the left thigh 2cm long and 6cms deep; there were two cuts seen superficially on the arteries of the thigh on the left measuring 2cm long and there was a deep wound on the popliteal fossa of the right leg behind right knee - 2cm long and 10cm deep. There was marked pallor on both lungs; the spleen was damaged; the liver was pale and the doctors’ opinion was that the cause of death was cardio- respiratory arrest due to massive haemorrhage following multiple stab wounds. He produced the report into evidence. 8. Put on his defence the appellant testified on oath that on the material day he and his brother (the deceased) first went to a local church whereafter they had lunch and had then proceeded to a local bar when the deceased bought him alcohol. They were joined by two friends and they made merry until 4 p.m. when the deceased spilled alcohol on the table leading to a quarrel. They left for home where the deceased picked a kitchen knife and stabbed the appellant on the hand and face. They struggled for the knife as the appellant was asking the deceased why he wanted to kill him when they were the only two surviving their immediate family; that the deceased chased away the two friends threatening them with the knife and as the struggle continued the knife injured the deceased. Mutiga and Thuranira arrived and intervened, taking the knife from the deceased. He (the appellant) was taken by police to the hospital for treatment. He had not planned to kill his brother. Challenged in cross examination he stated: “…I did kill my brother but I did not intend to kill him. We were wrestling over the knife, we were all holding it and in the process, he was injured. I was also bleeding and I was not sure where he was injured …. Thuranira found us struggling over the knife. I heard his evidence. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2149/eng@2025-11-28 2

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He said I stabbed my brother. He said that he cautioned me not to stab my brother further. He said he warned that he would hit me with a stone if I continued. He had no reason to frame me…” 9. Wendoh, J. considered the case made by both sides and in the judgment delivered on 25th February, 2016 convicted the appellant and after being informed by State counsel that the appellant was a first offender and after taking mitigation the Judge sentenced the appellant to suffer death. 10. Those findings provoked this appeal which came up for hearing before us on 7th May, 2025 where the appellant was represented by learned counsel Miss Nganga while learned State counsel Mr. Muriithi appeared for the respondent. Although both sides had filed written submissions addressing both conviction and sentence counsel for the appellant informed us that the appellant was appealing on sentence only as per a supplementary Memorandum of Appeal that had just been filed. In that Memorandum of Appeal drawn for the appellant by S.N. Nganga & Co. Advocates the following supplementary grounds is set out: “ (1) THAT the appeal is only against the death sentence that was meted against the Appellant by the trial court since the appellant does not wish to challenge his conviction. 11. The mandatory death sentence meted on the Appellant should be reviewed in light of the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic (2016).” 12. Addressing that ground of appeal before us counsel submitted that the appellant was 20 years old when he committed the offence; he was now 36 years old and has matured; he is saddened that his previous life had been an irresponsible one where he had killed his brother while in state of intoxication. He was a father of two children aged 18 years and 20 years who lived with their grandmother after his wife had remarried and emigrated to Uganda. He had been in custody for 14 years and had reformed and taken studies in religion and had become a preacher in prison. 13. Counsel relied on the case of Francis Karioko Muruatetu & Others vs. Republic [2017] eKLR and submitted that the mandatory death sentence imposed by the trial court was unconstitutional. She asked us to interfere with sentence. 14. Mr. Muriithi in opposing the appeal and in a highlight of written submissions asked us to consider the nature of injuries infiicted on the deceased by the appellant. The deceased was running away to save his life when the appellant kept stabbing him from the back infiicting severe injuries as shown in postmortem report. Cause of death was cardio-respiratory arrest due to haemorrhage. Counsel submitted that in those circumstances the appellant was not entitled to any leniency; that he deserved the death sentence which was the only sentence for murder in the year 2016. 15. We have considered those submissions in relation to the death sentence that was imposed on the appellant by the trial Judge. 16. It is true as submitted by State counsel, that the death sentence was the only available sentence in 2016 for the offence of murder under section 203 as read with section 204 of the Penal Code. 17. The question that arose amongst other issues before a petition at the Supreme Court of Kenya in Francis Karioko Muruatetu (supra) was whether it was constitutional for Parliament to impose mandatory death sentence. It was argued for the petitioners that imposition of the death sentence was unconstitutional as was their commutation of their sentence to life imprisonment. It was also argued on their behalf that the mandatory nature of the sentence was contrary to the right to a fair trial https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2149/eng@2025-11-28 3

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and removed the sentencing discretion of a Judge. It was held that any court dealing with a murder charge was to exercise discretion in sentencing and consider any mitigating factors; section 204 of the Penal Code was inconsistent with the Constitution to the extent that it provides for mandatory death sentence; the death sentence remained as a maximum punishment; the petitioners were given an opportunity for re-sentencing. 18. The jurisprudence has therefore emerged and courts have discretion to consider the particular circumstances and mitigating factors in sentencing although, again, as clarified by the Supreme Court in Directions given in Francis Karioko Muruatetu & Another vs. Republic & Others [2015] eKLR [2021] KESC 31 (KLR) (6 July 2021) (Directions) (today referred to as “Muruatetu 2”) that decision only applied to murder cases. 19. In the present appeal the appellant was convicted after which the State counsel informed the Judge that there were no records on previous conviction; the appellant be treated as a first offender. 20. Counsel for the appellant stated in mitigation: “ …accused pleads for leniency. He regrets the death of the deceased.” The Judge considered what had been said; considered that the appellant viciously attacked his only brother and infiicted such serious injuries “… whatever the brother had done it was not deserved. The only sentence for the offence is one of death and I sentence accused to suffer death in accordance with the law.” 21. That was on 25th February, 2016 before the Supreme Court in Francis Karioko Muruatetu (supra) (“Muruatetu 1”). The Judge had no choice in 2016 but to impose the death sentence. 22. We have considered the unfortunate circumstances that led to the death of the deceased. 23. What emerged from the prosecution evidence was that the appellant and the deceased, who were brothers went out to enjoy drinks at a local joint near their home and it appeared that they had more than they could handle. A little incident happened where the deceased poured alcohol on the table probably by accident but this seems to have angered the appellant in a way that was disproportionate to the incident. The two started quarreling and even the intervention of their two drinking mates could not help the situation. All of them proceeded home and according to the prosecution the appellant armed himself with a kitchen knife which he used to repeatedly stab the deceased leading to his death. 24. According to the sworn defence by the appellant it was the deceased who picked up the kitchen knife and stabbed him on the face and hand leading to a struggle for the knife which the appellant eventually took and overpowered his brother. 25. The injuries infiicted on the deceased were serious; they led to his death. 26. We are told that the appellant was a 20 year old youth who has since matured; he regrets the events that led to the death of his brother; his wife deserted him and remarried; he has a complete new attitude to life and has indeed studied religion and is a preacher at the prison where he is imprisoned. Counsel for the appellant submits that he deserves a second chance in life. 27. We agree that the appellant deserves another chance in the circumstances but we do not lose sight of the fact that he committed a heinous crime that led to the death of his brother. 28. Considering all that we have said we think that the appellant is deserving of a custodial sentence. We set aside the sentence of death imposed on the appellant and substitute thereof a sentence of 25 years’ https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2149/eng@2025-11-28 4

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imprisonment with effect from the date that the appellant was presented to the trial court for plea (20th November, 2011). 29. Those, then, are our orders. DATED AND DELIVERED IN NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. ole KANTAI ..................................... JUDGE OF APPEAL J. LESIIT ..................................... JUDGE OF APPEAL ALI-ARONI ..................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed Deputy Registrar https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2149/eng@2025-11-28 5

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