[2009] KEHC 2982 (KLR)
The court found that the accused, being a minor and having acted in self-defence during a confrontation initiated by the deceased, was guilty of manslaughter rather than murder. The court considered the accused's age, the fact that he was attacked first, and that he used the deceased's knife in the struggle. The...
Source-derived case information.
- Citation
- [2009] KEHC 2982 (KLR)
- Parties
- Applicant: Republic; Defendant: Dinyisco Amalemba Itayo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 38 of 2008
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted of manslaughter; sentenced to three months imprisonment at a Borstal Institution.
- Legal Topics
- Manslaughter, Self Defence, Juvenile Justice, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Dinyisco Amalemba Itayo
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused unlawfully killed the deceased, constituting manslaughter.
- 2 Whether the accused's actions amounted to self-defence under the circumstances.
- 3 What is the appropriate sentence for a minor convicted of manslaughter.
Ratio Decidendi
The court found that the accused, being a minor and having acted in self-defence during a confrontation initiated by the deceased, was guilty of manslaughter rather than murder. The court considered the accused's age, the fact that he was attacked first, and that he used the deceased's knife in the struggle. The court also took into account the accused's remorse and the familial relationship between the parties. In light of these mitigating factors and the requirements of the Children’s Act, the court imposed a custodial sentence of three months at a Borstal Institution, emphasizing rehabilitation over retribution.
Court Disposition
convicted of manslaughter; sentenced to three months imprisonment at a Borstal Institution.
Orders
- The accused shall serve three (3) months imprisonment at a Borstal Institution within Western Province.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Criminal Case 38 of 2008
REPUBLIC ---------------------------------------------- PROSECUTOR
V E R S U S
DINYISCO AMALEMBA ITAYO --------------------- 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 the accused on the 1st day of August, 2008 at Mutao village, Mutao Sub-location, Shirere Location in Kakamega South District within Western Province unlawfully killed Geoffrey musee. The accused pleaded guilty to the charge.
On 1st August, 2008 at Mutao village at about 6. 00 p.m. the accused was heading home when he was confronted by the deceased who alleged that the accused had on 31/7/08 stolen his radio speakers. The Accused attempted to flee as the deceased was bigger in size and older than him but the deceased ran and caught up with him and began assaulting the accused. The deceased produced a knife from his trouser pocket and attempted to stab the accused. A struggle ensued and the knife fell and the accused picked the knife and stabbed the deceased once on the neck.
The deceased died of the injuries at the scene. A Postmortem by Dr. Oreke opined that the deceased died due to penetrating chest trauma. The accused was escorted by his father to the Police Station and the accused was initially charged with the offence of murder which was later reduced to manslaughter.
Mr. Ondieki, counsel for the accused, in mitigation submitted that the accused is very remorseful and that the deceased was the accused’s first cousin. He acted in self defence. The knife belonged to the deceased. The accused had just done his Kenya Certificate of Primary Education and was due to join Form one. The accused is a minor under the children’s Act and should be given a chance to construct his life through studies.
The accused herein is about 17 years old and therefore a child under the provisions of Section 2 of the Children’s Act, 2001 (Act No. 8/2001). Taking into account the above scenario which led to the commission of the offence, and noting that the accused acted in self defence, I sentence the accused to serve three (3) months imprisonment at a Boastal Institution within Western Province.
Delivered, dated and Signed at Kakamega this 30th day of July, 2009.
SAID J. CHITEMBWE
J U D G E