[2024] KEHC 2262 (KLR)

Republic v Jeffa & 2 others (Criminal Case E014 of 2020) [2024] KEHC 2262 (KLR) (5 March 2024) (Sentence)

Neutral citation: [2024] KEHC 2262 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case E014 of 2020

A. Ong’injo, J

March 5, 2024

Between

Republic

Prosecutor

and

Mwenye Heri Mgele Jeffa

1st Accused

Shadrack Nyiro Rasi

2nd Accused

Bernard Masai Mwangeka

3rd Accused

Sentence

1. The accused persons Mwenye Heri Mgele Jeffa, Shadrack Nyiro Rasi, Bernard Masai Mwangeka were jointly charged with the offence of murder contrary to Section 203 as read 204 of the Penal Code.

2. Particulars are that the accused persons on the 19th day of October 2020 at Kiwegu Village in Vanga Location Lungalunga Sub-County within Kwale County, murdered Mwalewa Jeffa.

3. The accused persons were found guilty and the Presentence Report as well as the Victim Impact Statement were called by the court. Upon filing the reports, Mr. Otwoma Advocate mitigated on behalf of the 3 accused persons. For the 1st accused person, he said that he is married and has children who are school going and are dependent on him and that his elderly mother is also dependent on him. Mr. Otwoma pleaded for leniency for the 1st accused person whom he said suffers from ulcers and had learnt his lesson.

4. For the 2nd accused, Mr. Otwoma said the Pre-Sentence Report and Victim Impact Statement were favourable to him and that he is remorseful. He said that the 2nd accused was an associate pastor in the local church and had been reaching out to the secondary victims with a view to reconciliation. He pleaded for leniency saying that he had 7 children and has a wife who depend on him entirely and he is a caregiver to his mother.

5. For the 3rd accused, Mr. Otwoma said he is a businessman who comes from a big extended family of over 28 children in which he is the only son. That he had been in custody since 2020, that he has 3 wives with many children who depend on him. He requested that the 3rd accused person’s motorcycle which was confiscated be released to his family which was being used to earn a living.

6. Pre-Sentence Reports were filed on 28th February 2024 in respect of all the accused persons. The report in respect of the 1st accused, Mwenyeheri Mgele Jefa is that members of Kiwegu Village know him mostly for bad reasons. They do not approve of the approach that the accused has been using to contest land dispute. They view him as an abrasive person who employs pro-social means of dispute resolution. The local administrators observe that threats to the deceased’s family are still ongoing and can only be traced to the land dispute. Social inquiries indicate that although he was acquitted on appeal for robbery with violence, his previous conduct and associates he keeps leans towards anti-social behavior.

7. It was concluded that the existing animosity between the secondary victims and the accused does not favour conciliation more so when the accused has continued denying committing the offence and continued threatening the secondary victims.

8. The report in respect of the 2nd accused person is that he is a first cousin to the wife of the deceased but closely related to the 1st accused who had unending feud with his elder brother over a piece of land. He said that his close association predisposed him to the said offence. He said that he reached out to the deceased’s family for reconciliation but the same was shelved until the case before court is finalized. He was an assistant pastor in Faith Baptist Church and those who spoke about him said he was a soft-spoken man and the community looked upon him for guidance. The 2nd accused person expressed remorse and seeks the court’s leniency.

9. The 3rd accused person Pre-Sentence Report indicates that he is the surviving male child in a family of over 22 children and none of his siblings appear to have had a close relationship with him and he lived with none of his three wives and five children. He had a previous criminal record for defilement which he served sentence. The community does not have positive rating on the 3rd accused. It has been revealed that he has a close relationship with the 1st accused person. He urged the court to exercise leniency when sentencing him.

10. The Victim Impact Statement was also filed on 28th February 2024 and it shows that the long standing feud between the 1st accused and his mother and siblings on the one hand and the deceased before and after the incident herein caused profound emotional and psychological impact on the secondary victims. That a sustained emotional and psychological attacks on the secondary victims made the whole family to leave their home. The secondary victims have reported other incidences to the police which are under investigation. It is indicated that Nyale Mwalewa Jefa, the son of the deceased had shown signs of psychological breakdown.

11. In consideration of the Pre-Sentence Reports, the Victim Impact Statement, mitigation by the accused persons, and the circumstances of the offence herein, this court finds that the offence committed by the accused persons and the manner in which it was committed is very serious. The 3rd accused person is a repeat offender having committed an equally serious offence of defilement of a child. The accused persons deprived the deceased of his life contrary to Article 26 (1) and (3) of the Constitution of Kenya 2010 and did not care that the action was going to have far reaching psychological effects on the dependants of the deceased who have been left widowed and orphaned respectively.

12. The views of the community in respect to the 1st and 3rd accused persons are not favourable and although the 2nd accused person expressed remorse and seeks court’s leniency having said he will reach out for conciliation with the family of the deceased, the offence committed requires a deterrent sentence that mirrors the negative consequences of one’s involvement in criminal activities. A custodial sentence is called for and I hereby sentence the accused persons to a term of forty (40) years imprisonment. Sentence in respect to the 1st accused will factor in remand period of 1 year 2 months from 2nd November 2020 to 4th January 2022. The 2nd accused person’s sentence to factor in a remand period of 1 year 3 months from 2nd November 2020 to 1st February 2022. The 3rd accused person’s sentence to take effect from 2nd November 2020. Right of appeal within 14 days explained.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 5TH DAY OF MARCH 2024HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Etropia- Court AssistantMr. Ngiri for the StateMr. Kakai Advocate h/b for Mr. Were Advocate for the 1st Accused PersonMr. Kakai Advocate h/b for Mr. Otuoma Advocate for the 2nd Accused PersonMr. Kakai Advocate h/b for Ms. Ayieko Advocate for the 3rd Accused PersonAccused persons present in personHON. LADY JUSTICE A. ONG’INJOJUDGECourt: Certified copies of Proceedings and, Judgment and Sentence to be supplied to defence and state.HON. LADY JUSTICE A. ONG’INJOJUDGE