[2009] KEHC 2978 (KLR)
The court found that the accused, a minor and first offender, unlawfully killed the deceased in circumstances lacking premeditation or intent to kill. The act was precipitated by provocation, as the deceased had assaulted the accused's mother and then attempted to attack the accused with a panga. The accused...
Source-derived case information.
- Citation
- [2009] KEHC 2978 (KLR)
- Parties
- Applicant: Republic; Defendant: David Mwando Kulali
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 15 of 2009
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- accused acquitted and set free
- Legal Topics
- Manslaughter, Juvenile Offender, Sentencing Principles, Unlawful Killing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Mwando Kulali
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused unlawfully killed the deceased, constituting manslaughter.
- 2 Whether the accused, being a minor, should be subjected to a custodial sentence.
Ratio Decidendi
The court found that the accused, a minor and first offender, unlawfully killed the deceased in circumstances lacking premeditation or intent to kill. The act was precipitated by provocation, as the deceased had assaulted the accused's mother and then attempted to attack the accused with a panga. The accused responded by hitting the deceased with a walking stick, causing fatal injury. Given the accused's age and the absence of intent to kill, the court determined that a custodial sentence would not serve justice or the rehabilitative aims of the law. The court applied the Children’s Act, prioritizing the welfare and rehabilitation of the child, and ordered the accused's release.
Court Disposition
accused acquitted and set free
Orders
- The accused is hereby set free and shall be at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Criminal Case 15 of 2009
REPUBLIC..........................................................PROSECUTOR
V E R S U S
DAVID MWANDO KULALI...............................ACCUSED
S E N T E N C E
The accused is charged with the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The particulars of the offence are that on the 23rd day of February, 2009 at Emwatsi village, Embali Sub-location, West Bunyore Location in Emuhaya District within Western Province the accused unlawfully killed GILBERT MUNAI MWANDO. The accused pleaded guilty to the charge.
On 23rd February, 2009 the accused arrived home at 1. 00 p.m. and found that his mother had been assaulted by the deceased who was his uncle. The accused and his brother, David Muhando Kulali, decided to go to the deceased’s home and inquire why the deceased had assaulted their mother. They found the deceased at home and in the process of inquiring why the deceased had assaulted the accused’s mother, an argument ensued. The deceased picked a panga and attempted to cut the accused who evaded and picked a walking stick which was in the deceased’s home and hit the deceased on the head. The accused and his brother ran away.
The deceased was rushed to Yala District Hospital but passed away while undergoing treatment. A Postmortem conducted on 27/2/09 by Dr. Esiaba indicated that the cause of death was head injury secondary to blunt object. The accused was arrested the following day by members of the public and handed over to the police. The accused was charged with murder which was reduced to manslaughter.
The accused on 23/3/09 informed the Deputy Registrar that he was 15 years. An order for age assessment was made but there is no report in the file. Taking into account the circumstances of the case and that the accused is a first offender, I do not think a custodial sentence would serve any purposes in this case. The accused is a child under the Children’s Act and never intended to kill the deceased. The accused is hereby set free and shall be at liberty unless otherwise lawfully held.
Delivered, dated and Signed at Kakamega this 28th day of July, 2009.
SAID J. CHITEMBWE
J U D G E