[2024] KEHC 9527 (KLR)
The court found that the accused persons, Francis Hamisi and Emmanuel Andera Sikuku, were not justified in killing the deceased, Patrick Otieno Makali, despite the deceased's troublesome character. The evidence established that the accused attacked the deceased at their parents' home and inflicted fatal injuries in...
Source-derived case information.
- Citation
- [2024] KEHC 9527 (KLR)
- Parties
- Applicant: Republic; Defendant: Francis Hamisi; Defendant: Emmanuel Andera Sikuku
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E008 of 2023
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- convicted and sentenced
- Judges
- WM Musyoka
- Legal Topics
- Murder, Sentencing, Mitigation, Remorse, Vigilante Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Francis Hamisi
Defendant
Emmanuel Andera Sikuku
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused persons were justified in killing the deceased given his alleged prior conduct.
- 2 Whether mitigation factors such as lack of previous criminal records and family circumstances warrant leniency in sentencing.
- 3 Whether the accused persons' denial of responsibility and lack of remorse should affect the sentence.
Ratio Decidendi
The court found that the accused persons, Francis Hamisi and Emmanuel Andera Sikuku, were not justified in killing the deceased, Patrick Otieno Makali, despite the deceased's troublesome character. The evidence established that the accused attacked the deceased at their parents' home and inflicted fatal injuries in a brutal manner. The court rejected the defence's assertion that the deceased was the aggressor and noted the accused's lack of remorse and continued denial of responsibility. The court held that, even if the deceased had wronged the accused, the proper course was to report him to the authorities rather than resort to vigilante justice. Taking into account the mitigation,...
Court Disposition
convicted and sentenced
Orders
- The accused persons, Francis Hamisi and Emmanuel Andera Sikuku, are sentenced to serve imprisonment for a period of 30 years for the murder of Patrick Otieno Makali.
- There is a right of appeal to the Court of Appeal, to be filed within 14 days of the date of this order.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Hamisi & another (Criminal Case E008 of 2023) [2024] KEHC 9527 (KLR) (26 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9527 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Case E008 of 2023
WM Musyoka, J
July 26, 2024
Between
Republic
Prosecution
and
Francis Hamisi
1st Accused
Emmanuel Andera Sikuku
2nd Accused
Ruling
1. I convicted the accused persons herein, Francis Hamisi and Emmanuel Andera Sikuku, on 31st May 2024, of the murder of Patrick Otieno Makali. The background was that the deceased had attacked the 1st accused on 1st April 2023, and fled, whereupon the accused vented their anger, by setting his house of fire, and cutting down his sugarcane and trees. The following day, 2nd April 2023, the accused persons attacked the deceased at the home of their parents, and assaulted him severally. He died after he was hit on the head with a big stone by the 2nd accused.
2. In mitigation, it was said, by his Advocate, Mr. Were, that the accused had no previous criminal records, and that they were pleading for leniency. He stated that the deceased was a bad element in the family and the community, who had even allegedly committed a murder in Narok. The deceased was said to have been the aggressor. The accused persons were described as family persons, and that, for one of them, his wife died while he was in custody.
3. The Republic, through Mr. Onanda, submitted that a life was lost, regardless of the character of the deceased person, and asserted that the accused persons had no right to take the law into their own hands.
4. I called for pre-sentence reports, and only 1 was filed, dated 1st July 2024, in respect of the 1st accused. It indicates that the 1st accused was still denying commission of the offence, insisting that the deceased was killed by a mob.
5. I have considered the mitigation, the pre-sentence report and the recorded evidence. Contrary to the assertion that the deceased was the aggressor, the evidence, recorded from the witnesses, attested otherwise. There was an altercation between the deceased and the 1st accused the previous day, but on the day the deceased died, it was the accused persons who attacked him, at the home of their parents. Secondly, the manner of the killing was most brutal, a hit on the head with a building block, so severe as to crush the head. Thirdly, the accused persons express no remorse, for they still deny that they caused the death, insisting that the deceased died after a beating by a mob.
6. I am cognisant, from the recorded evidence, and the pre-sentence report, that the deceased was a troublesome person, but that, of itself, was no justification for his killing. If the accused persons had been wronged by him, in any way, the appropriate thing would have been to report him to the authorities, so that the law could take its normal course. They failed to do that, and, instead, chose to take the law into their own hands.
7. Taking everything into account, I hereby sentence the accused persons, Francis Hamisi and Emmanuel Andera Sikuku, to serve imprisonment for a period of 30 years, for the murder of Patrick Otieno Makali. There is a right of appeal, to the Court of Appeal, and the appeal ought to be filed within 14 days of the date of this order.
DELIVERED, DATED AND SIGNED, IN OPEN COURT, AT BUSIA ON THIS 26TH DAY OF JULY 2024W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Were, Advocate for the accused person.Ms. Chepkonga and Mr. Onanda, instructed by the Director of Public Prosecutions, for the Republic.