[2014] KEHC 6877 (KLR)
The High Court found that while the sentence of life imprisonment for accessory after the fact to murder was within the law, the trial magistrate failed to consider the appellant's status as a first offender and did not sufficiently inquire into his social status or mitigation. The issue of intoxication was not...
Source-derived case information.
- Citation
- [2014] KEHC 6877 (KLR)
- Parties
- Appellant: Joseph Mutua Musili; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 34 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- LN Mutende
- Legal Topics
- Accessory After the Fact, Sentencing Principles, Plea of Guilty, Mitigation, Intoxication, Appeals on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mutua Musili
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of life imprisonment for accessory after the fact to murder was lawful and appropriate in the circumstances.
- 2 Whether the trial court properly considered the appellant's mitigation and status as a first offender.
- 3 Whether intoxication could be considered as a mitigating factor at sentencing.
Ratio Decidendi
The High Court found that while the sentence of life imprisonment for accessory after the fact to murder was within the law, the trial magistrate failed to consider the appellant's status as a first offender and did not sufficiently inquire into his social status or mitigation. The issue of intoxication was not raised at trial and, in any event, would not have served as a mitigating factor unless it negated mens rea. The appellate court determined that the sentence imposed was manifestly excessive in the circumstances, particularly given the lack of evidence as to how the deceased met his death and the appellant's cooperation with authorities. Accordingly, the High Court exercised its...
Court Disposition
sentence varied
Orders
- The sentence of life imprisonment is set aside.
- The appellant is sentenced to seven years' imprisonment.
Full Case Text
Judgment text and source record
24 paragraphs
208/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 34 OF 2007
JOSEPH MUTUA MUSILI...................APPELLANT
VERSUS
REPUBLIC .....................................RESPONDENT
(Being an appeal from the original conviction and sentence in Mwingi Senior Resident Magistrate’s Court Criminal Case No. 132 of 2007 by Hon Richard Odenyo, SRM on 9/2/2007)
JUDGMENT
The Appellant with another (now deceased) were charged with the offence of accessory after the fact to murder contrary to Section 222 of the Penal Code. Particulars of the offence being that on the 16th day of March 2006, at Kambiti Village of Kyathani Location in Mwingi District within Eastern Province knowing that Maithya Mulae had murdered John Kilonzo Matiti did assist the said Maithya Mulae to bury the said John Kilonzo Matiti in order to enable him escape punishment.
They pleaded guilty to the charge. Accordingly they were sentenced to serve life imprisonment.
The appellant now appeals on grounds that he was a first offender; his mitigation was not considered; the language used by the court controverted Section 198 of the Criminal Procedure Code and Section 77 (2) of the Constitutionwhich led to miscarriage of justice; he was intoxicated; the sentence meted out was excessively harsh in the circumstances of the offence; he has now reformed and fully rehabilitated having undergone various courses.
This being the first appellate court my duty is to re-evaluate and analyse circumstances that culminated into the sentence that was imposed. (see Okeno versus Republic[1972] E.A. 32) .
A reconsideration of the Lower Court record shows that the Appellant pleaded guilty to the charge. According to Section 348 of the Criminal Procedure Code, a person has no right of appeal against a conviction resulting from his or her plea of guilty. What I therefore must consider is the legality of the sentence.
A person who becomes an accessory after the fact to murder on being convicted is liable to imprisonment for life.
The trial magistrate meted out a sentence of life imprisonment. This was within the law. However, the magistrate had the discretion to consider mitigating factors and the circumstances under which the offence was committed. The appellant states that he was intoxicated at the time of commission of the offence.
The facts presented are that the appellant’s co accused having drunk alcohol on the 3/11/2006 threatened to have one Mbusi Musyimi buried as they had buried the deceased. He reported to the authority. The appellant and another led the police to the recovery of the deceased’s body which had been interred on his farm.
In his mitigation in the Lower Court the appellant sought leniency and added that he was a first offender. He did not raise the issue of intoxication. His co-accused is the one who pleaded for mercy stating that he was intoxicated. It is therefore at the appellate stage that he has introduced the issue of intoxication. It is important to point out that intoxication through drinks would not be a defence unless it is proved that the intoxication made the party not able to form mens rea. Being an aggravating factor, it cannot be a mitigating factor.
In the case of Sayeka versus Republic [1989] KLR 306 the C.A held thus:-
“The appellate court will not ordinarily interfere with the discretion exercised by the Lower Court unless it is evident that the lower court acted upon some wrong principles, or overlooked some material factors or the sentence is manifestly excessive in the circumstances of the case...”
No evidence of how the deceased met his death was adduced. In the premises the fact that the appellant was a first offender should have been considered. The court could also have inquired into his social status. In the circumstances, I have reason to interfere with the sentence passed which I find excessive. I therefore set aside the sentence passed and substitute it with that of 7 years imprisonment.
DATED, SIGNED and DELIVEREDat MACHAKOS this 19THday of FEBRUARY 2014
L.N. MUTENDE
JUDGE