[2009] KEHC 2017 (KLR)
The court found that the accused persons did not intend to kill the deceased but acted in response to the deceased's violent conduct towards his family. The accused restrained the deceased and took him to the police, demonstrating a lack of malice aforethought. The postmortem established the cause of death as...
Source-derived case information.
- Citation
- [2009] KEHC 2017 (KLR)
- Parties
- Applicant: Republic; Defendant: Gerald Chibayi Esikuri; Defendant: Dennis Amanya Away; Defendant: Melzadeck Ngota
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 29 of 2008
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- accused set at liberty
- Legal Topics
- Manslaughter, Sentencing Principles, Mitigating Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Gerald Chibayi Esikuri
Defendant
Dennis Amanya Away
Defendant
Melzadeck Ngota
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused persons intended to kill the deceased or acted in circumstances amounting to manslaughter.
- 2 What is the appropriate sentence for the accused persons who pleaded guilty to manslaughter under the given circumstances.
Ratio Decidendi
The court found that the accused persons did not intend to kill the deceased but acted in response to the deceased's violent conduct towards his family. The accused restrained the deceased and took him to the police, demonstrating a lack of malice aforethought. The postmortem established the cause of death as cardio-respiratory failure secondary to hemorrhage and ruptured spleen. Given the circumstances, including the accuseds' remorse, the third accused's age, the orphan status of the other two, and the fact that they had already been in custody for over a year, the court determined that a custodial sentence was not appropriate. The accused were therefore set at liberty.
Court Disposition
accused set at liberty
Orders
- The accused are hereby set at liberty and shall be free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Criminal Case 29 of 2008
REPUBLIC........................................................................PROSECUTOR
V E R S U S
GERALD CHIBAYI ESIKURI ......................................... 1ST ACCUSED
DENNIS AMANYA AWAY...............................................2ND ACCUSED
MELZADECK NGOTA ....................................................3RD ACCUSED
S E N T E N C E
The three accused persons were charged with murder contrary to section 203 as read with section 204 of the Penal Code. They denied the charge. The prosecution reduced the charge to manslaughter to which the accused pleaded guilty.
The particulars of the offence are that on the 18th day of June, 2008 at Mungoya village, Emukola Sub-location, West Bunyore location in Emuhaya District of Western Provice, the three accused unlawfully killed HARRISON MUKAKA.
On 18th June, 2008 the deceased who was the accused’s uncle arrived home drunk at 8. 00 p.m. He started beating his young son and his wife who was 9 months pregnant. Then ran to the deceased’s mother’s house but the deceased followed them and went on to beat them together with his mother using a whip. The three accused came out from their respective houses in response to the screams made by the deceased’s mother, wife and child. The deceased turned onto the three accused and started whipping them. They managed to restrain him, tied him with a rope and took him to Ebukolo A.P. Camp where the deceased was placed in the cells. Unfortunately the deceased passed away on the same night. A postmortem done by Dr. Limo revealed that the deceased’s death was due to cadiorespiratory failure secondary to hemorrhage and ruptured spleen.
Mrs. Muleshe for the accused submitted that the accused are remorseful and that their intention was to restrain the deceased and not to kill him. The third accused is 15 years and was to join a polytechnic having just completed his standard eight exams. The other two accused are orphans.
Taking into account the circumstance under which the deceased met his death, it is clear that none of the accused intended to kill the deceased. The accused persons respondent to the screams by the deceased’s wife, mother and child. They took him to the police that night. The deceased was drunk and fought everyone. I am convinced that a custodial sentence is not ideal under the circumstances taking into account the fact that the accused persons have been in custody for over one year. The accused are hereby set at liberty and shall be free unless otherwise lawfully held.
Delivered, Dated and Signed at Kakamega this 23rd .day of September, 2009
SAID J. CHITEMBWE
J U D G E