[2002] KEHC 505 (KLR)
The appellate court found that the trial magistrate correctly admitted the appellant's confession statement after conducting a trial within trial and determining its admissibility. The conviction for manslaughter was upheld as the appellant was aware of the acts leading to the deceased's death and admitted to...
Source-derived case information.
- Citation
- [2002] KEHC 505 (KLR)
- Parties
- Appellant: Julius Muthanga Maluki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 114 of 2000
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal allowed in part
- Legal Topics
- Manslaughter, Admissibility of Confessions, Sentencing Principles, Mitigating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Muthanga Maluki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial court properly admitted the appellant's retracted confession statement as evidence.
- 2 Whether the conviction for manslaughter was supported by the evidence on record.
- 3 Whether the sentence of 6 years imprisonment was excessive in the circumstances.
Ratio Decidendi
The appellate court found that the trial magistrate correctly admitted the appellant's confession statement after conducting a trial within trial and determining its admissibility. The conviction for manslaughter was upheld as the appellant was aware of the acts leading to the deceased's death and admitted to defending himself. However, the appellate court held that the sentence of 6 years imprisonment was excessive given the mitigating factors: the appellant's two years in custody before conviction, four years already served, his status as a first offender, his apparent remorse, lack of intent to cause death, and deteriorating health. The court substituted the sentence with a more...
Court Disposition
appeal allowed in part
Orders
- The sentence of 6 years imprisonment is set aside.
- The appellant is sentenced to 2.5 years imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL. NO.114 OF 2000
(Being an appeal from Original Conviction and Sentence in Criminal Case No.1561 of 1999
JULIUS MUTHANGA MALUKI ………………………..… APPELLANT
VERSUS
RESPONDENT ……………………………..…………….. RESPONDENT
The Appellant was tried on a charge of manslaughter contrary to Section 202 as read with Section 205 of Penal Code.
The prosecution evidence is based on retracted statement of the Appellant made under inquiry. There was no other evidence of what happened except on how deceased died after falling in the toilet hole (latrine).
The trial magistrate conducted a trial within trial and came to the conclusion that that the Appellant’s statement was admissible. I agree with his finding in this regard.
The only objection the Appellant raised is that it was not his statement. He said the statement he had made was written in Kikamba language, but he admitted the statement that was produced was signed by him. The trial Magistrate relied entirely on this statement when convicting the appellant. At the hearing of this appeal the Appellant abandoned his ground of appeal and concentrated in pleading that the sentence be reduced as he is always sick in jail and that he was defending himself when the incident occurred.He pleaded that he wished to be free to look after his seven children. It is to be noted that in his grounds of appeal ground 4 he states “the deceased died after some few days after the fight -----“ There is no doubt then that he was well aware of the acts that caused the death of the deceased. He even said he was defending himself.
In the circumstances then the Trial Magistrate was right in convicting on the evidence of the statement produced by the prosecution.
On the issue of sentence the Appellant was sentenced to 6 years imprisonment. There are mitigating factors. The Appellant had been in custody for 2 years and has now been in jail for 4 years.He was a first offender and he appeared remorseful to the trial court. Although the learned Magistrate was of the view that the appellant shortened the life of the deceased on flimsy grounds, it is to be noted that he had no intention to cause death. The circumstances as narrated by him do not show that he had thought death would occur and he says his goods were lost while in the hands of the deceased. The other factor is that his health seems to be deteriorating. He says he is always sick in jail and he looks to me frail. I am of the view that considering the circumstances of this case a sentence of 6 years imprisonment is excessive. A more lenient sentence is called for. I therefore set aside the sentence of 6 years imprisonment and substitute with one of 2 ½ years from the date of conviction.
The appeal is therefore allowed to that extent.
Dated at Mombasa this 13th Day of March, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE