[1983] KECA 128 (KLR)
The Court of Appeal found that, although the appellant committed a serious and violent act resulting in the death of an elderly woman, there were no specially aggravating circumstances beyond the fact that the parties were drinking together and the offence arose from a family dispute. The appellant's plea of guilty,...
Source-derived case information.
- Citation
- [1983] KECA 128 (KLR)
- Parties
- Appellant: Alfayo Mario s/o Mayaka; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 108 of 1983
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- sentence reduced on appeal
- Judges
- ARW Hancox
- Legal Topics
- Manslaughter, Sentencing Principles, Mitigation, Drunkenness, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfayo Mario s/o Mayaka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 10 years' imprisonment for manslaughter was manifestly excessive in the circumstances of the case.
- 2 Whether the mitigating factors, including intoxication, plea of guilty, and lack of aggravating circumstances, warranted a reduction of sentence.
Ratio Decidendi
The Court of Appeal found that, although the appellant committed a serious and violent act resulting in the death of an elderly woman, there were no specially aggravating circumstances beyond the fact that the parties were drinking together and the offence arose from a family dispute. The appellant's plea of guilty, lack of prior convictions, and the context of intoxication were considered as mitigating factors. The court held that the sentence of ten years' imprisonment was manifestly excessive in the circumstances and, exercising its appellate discretion, reduced the sentence to seven years' imprisonment.
Court Disposition
sentence reduced on appeal
Orders
- The appeal is allowed.
- The sentence of ten years' imprisonment is set aside and substituted with a sentence of seven years' imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU
(CORAM: HANCOX, J A CHESONI & PLATT, AG. JJ.A
CRIMINAL APPEALL NO 108 OF 1983
BETWEEN
ALFAYO MARIO……………………………………………..APPELLANT
AND
REPUBLIC…………………………………………………RESPONDENT
(Appeal from a sentence of the High Court of Kenya at Kisii (Mr E Cotran) dated 16th October, 1978 in Criminal Case No 85 of 1978
JUDGMENT OF THE COURT
Alfayo Mario s/o Mayaka, the appellant, was originally charged with the murder on 13thAugust, 1978, of a woman named Moraa w/o Mayaka, who was either his step mother or aunt, but he was convicted on his own plea of guilty of manslaughter and sentenced by Cotran, J. to 10 years' imprisonment. He has appealed against the sentence only and he says this is because the unlawful killing was accidental as it was due to the quantity of the alcohol he had consumed; he pleaded guilty; the offence arose out of a family dispute and he was a first offender.
The appellant and the deceased were drinking traditional liqour at the house of the appellant's mother (Rebecca). The deceased asked Rabecca for her bottle and when the latter told her to wait the deceased insisted on having the bottle. The appellant picked up an axe and hit the deceased on the head with it and she died instantly The appellant ran away and was not apprehended till some months later. In mitigation his counsel said that the appellant's intention was to frighten off the deceased and he thought the axe was a stick. That cannot be so because in his charge and caution statement made to Chief Inspector Joseph Shiundu of Kisii Police Station on 23"1 August, 1978, he said that he heard his mother and the deceased making noise as if they were about to fight and that after asking the deceased why she was making noise for the visitors he hit her on the head with an axe.
The doctor who performed post mortem on the deceased's body reported that she had a wound cut going down to the brain vertex and in his opinion he cause of death was a fractured skull and extensive brain damage. The deceased's age was estimated to have been 70 years at the time of her death whereas that of the appellant was then 26 years. Apart from blaming the incident on drunkenness there were no strong mitigating circumstances or factors to this vicious attack on the dead old woman a by a young man of the appellant’s age. The learned judge had had before him all the facts and circumstances presented to us when he fixed the sentence. However, the parties were drinking busaa together and in view of the fact that there were no specially aggrevating circumstances the sentences was on the facts that were before the court, manifestly excessive. We allow the appeal and reduce the sentence from ten to seven years’ imprisonment.
Dated at Kisumu this 6th day of December, 1983.
A R W HANCOX
JUDGE OF APPEAL
Z R CHESONI
AG JUDGE OF APPEAL
H G PLATT
AG JUDGE OF APPEAL