[2019] KEHC 5304 (KLR)
The court found that the accused, having spent 5 ½ years in custody, being a first offender, and having positive reports from his family and community, was suitable for a non-custodial sentence. The family had resolved internal disputes, and the accused's stay away from home was considered sufficient punishment. The...
Source-derived case information.
- Citation
- [2019] KEHC 5304 (KLR)
- Parties
- Applicant: Republic; Defendant: Benjamin Kalulu Katua
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 33 of 2017
- Procedural Posture
- Criminal Law / Sentencing Ruling After Conviction on Plea Bargain
- Outcome
- Accused discharged conditionally under Section 35(1) of the Penal Code.
- Legal Topics
- Manslaughter, Plea Bargain, Sentencing, Pre Sentence Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Benjamin Kalulu Katua
Defendant
Procedural Posture
Criminal Law / Sentencing Ruling After Conviction on Plea Bargain
Legal Issues
- 1 Whether the accused should receive a custodial or non-custodial sentence after conviction for manslaughter.
- 2 What weight should be given to the accused's period in custody, mitigation, and family circumstances.
Ratio Decidendi
The court found that the accused, having spent 5 ½ years in custody, being a first offender, and having positive reports from his family and community, was suitable for a non-custodial sentence. The family had resolved internal disputes, and the accused's stay away from home was considered sufficient punishment. The court exercised its discretion under Section 35(1) of the Penal Code to discharge the accused on condition of good behavior for 24 months, finding this to be a just outcome given the circumstances.
Court Disposition
Accused discharged conditionally under Section 35(1) of the Penal Code.
Orders
- Accused is discharged under Section 35(1) of the Penal Code on condition that he remains of good behavior for 24 months.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HCCRC NO. 33 OF 2017
REPUBLIC...............................................................................PROSECUTION
VERSUS
BENJAMIN KALULU KATUA......................................................ACCUSED
RULING
1. The accused was initially charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. It was later reduced to manslaughter after a plea bargain. The accused was convicted after admitting the charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.
2. After mitigation, the court called for a pre-sentence report. This was on 21st May 2019. A report dated 28/5/2019, was filed on 30/5/2019 and it indicated that there was an issue being raised by the accused’s younger brother which needed to be sorted out. The family therefore needed time to handle the issue.
3. On 6/6/2019, this court called for a further report in a month’s time to enable the accused’s family address his brother’s issue. It was not until 23/7/2019 that the said report was filed. Prior to this on 18/7/2019, the accused’s mother appeared before this court and confirmed that the family has bought for the accused alternative land for him to go and settle on. This is part of what needed to be sorted out in relation to the accused’s younger brother.
4. The accused was first arraigned in court on 16/1/2014. He has therefore been in custody for 5 ½ years. He is a first offender and still single. I have considered the circumstances leading to the commission of this offence, his period of stay in custody, his marital status and his being a first offender. Also considered is his mitigation. I find that his stay away from his family has taught him a few lessons. The community and family have positive reports about him.
5. For that reason, I find a non-custodial sentence to be suitable for him inorder for him to resettle himself.
Order
i. Accused is discharged under Section 35(1) of the Penal Code on condition that he remains of good behavior for a period of 24 (twenty-four) months. This condition is clearly explained to the accused person.
Orders accordingly.
DELIVERED, SIGNED & DATED THIS 25TH DAY OF JULY 2019, IN OPEN COURT AT MAKUENI.
..........................
H. I. ONG’UDI
JUDGE