Judge labels claims 'imaginary' as Gachagua's 'son' loses bid to cut 20-year sentence

The High Court has dismissed an application by a man claiming to be the son of the late Nyeri Governor Nderitu Gachagua, who sought a review of his 20-year sentence for robbery with violence, terming the move an abuse of court process.

In a ruling delivered at the Milimani High Court, Justice Alexander Muteti found that Jackson Kihara had failed to demonstrate any illegality, impropriety or irregularity that would justify interference with the sentence imposed by the trial court.

The judge noted that although the High Court had jurisdiction to hear the application, the applicant had not provided any valid legal basis for the review sought.

“This court finds that there was no impropriety or irregularity to warrant a review of the sentence in this matter,” ruled Justice Muteti.

He further held that both the trial court and appellate courts had already addressed the issues raised and saw no reason to interfere with the outcome.

“The amended notice of motion by James Kihara Gachucha is thus found to be without merit, and the order that commends itself is dismissal of the application in its entirety,” he stated.

Kihara argued, among other grounds, that the trial court failed to properly apply Section 333(2) of the Criminal Procedure Code, which requires consideration of time spent in remand custody before sentencing.

He also attempted to link his conviction to an alleged family dispute involving former Deputy President Rigathi Gachagua, claiming he had been framed over succession documents relating to his late father’s estate.

However, Justice Muteti rejected these claims, finding no connection between the alleged dispute and the robbery case.

The judge observed that the robbery occurred on April 24, 2015, at Kobil Petrol Station along Lang’ata Road in Nairobi, while the applicant’s father was still alive at the time.

“The court, therefore, wonders how the uncle of the appellant would have foreseen the death of the applicant’s father and sourced a complainant to lodge a report with the police. The claim is, to say the least, purely imaginative and a concoction of untruths,” the judge stated.

Mitigation factors

He further noted that Kihara himself confirmed that his father died in 2017, two years after the offence.

“The sentencing notes show compliance with the law, and the sentence imposed was legal and manifestly lenient,” he said.

The court also considered that the trial magistrate had taken into account several mitigating factors, including the accused’s lack of previous criminal record, a favourable pre-sentence report, the fact that no one was injured during the robbery, and the recovery of the stolen motor vehicle.

Justice Muteti further noted that robbery with violence carries a maximum penalty of death, and the 20-year sentence imposed was therefore proportionate in the circumstances.

He dismissed claims that the application raised new or compelling issues, describing them as an afterthought. “The applicant had the opportunity during trial and at the appellate stages to raise these issues, but did not do so,” the court held.

The judge also faulted Kihara for repeatedly returning to court despite the matter having been conclusively determined by both the High Court and the Court of Appeal.

He concluded that the application was designed to attract sympathy by introducing irrelevant claims unrelated to sentence review proceedings.

“The instant application has no legal or factual basis,” he ruled, adding that if Kihara considered the sentence excessive, the High Court was not the proper forum since the matter had already been determined by higher courts.

Kihara was convicted at the Milimani Chief Magistrate’s Court in 2019 for robbery with violence committed on April 24, 2015, at Kobil Petrol Station along Lang’ata Road, Nairobi.

Court records show he was part of a group that robbed a motorist of a motor vehicle in circumstances that met the legal threshold for robbery with violence.

Although no injuries were reported, the court found that all elements of the offence had been proved beyond reasonable doubt. The stolen vehicle was later recovered.

His appeal was dismissed by the High Court in May 2022, and the Court of Appeal upheld both the conviction and sentence in December 2023.