[2019] KEHC 9528 (KLR)
The court found that the accused, a 75-year-old man, acted under provocation when attacked by his son, who was armed and threatening. The accused's response, though excessive, was influenced by his frail age and the immediate threat posed by the deceased. The court gave weight to the positive pre-sentence report,...
Source-derived case information.
- Citation
- [2019] KEHC 9528 (KLR)
- Parties
- Applicant: Republic; Defendant: Joseph Ncebere M’AkwaLu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 91 of 2018
- Procedural Posture
- Criminal Law / Sentencing
- Outcome
- accused sentenced to probation
- Judges
- A Mabeya
- Legal Topics
- Sentencing, Provocation, Manslaughter, Mitigating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph Ncebere M’AkwaLu
Defendant
Procedural Posture
Criminal Law / Sentencing
Legal Issues
- 1 Whether the accused's actions were justified or mitigated by provocation from the deceased.
- 2 What is the appropriate sentence considering the circumstances and the accused's age.
Ratio Decidendi
The court found that the accused, a 75-year-old man, acted under provocation when attacked by his son, who was armed and threatening. The accused's response, though excessive, was influenced by his frail age and the immediate threat posed by the deceased. The court gave weight to the positive pre-sentence report, the accused's remorse, and the fact that he had already spent significant time in custody. These factors justified a non-custodial sentence. The court therefore sentenced the accused to six months probation, considering the totality of the circumstances and the principles of proportionality and mitigation in sentencing.
Court Disposition
accused sentenced to probation
Orders
- The accused is sentenced to six months probation.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HIGH COURT CRIMINAL CASE NO 91 OF 2018
REPUBLIC..............................................PROSECUTOR
VERSUS
JOSEPH NCEBERE M’AKWALU...............ACCUSED
S E N T E N C I N G
1. Have considered the representation by learned Counsel. I have considered that the accused is a 75 years old man who is remorseful for his action.
2. That he has been in custody since October, 2018.
3. I have considered that it is his son who lost his life as a result of the accused’s act. I have taken into consideration the Pre-sentence report on record which is positive of the accused.
4. Most importantly I have considered that it is the deceased who not only provoked but also attacked the accused first. The act of the accused may have been excessive but considering his age and that the deceased, a young energetic man, was armed with a rungu and was threatening the accused, in his frail age, he may have been compelled to use the weapon he did to stop the accused.
5. Taking all the foregoing and that the accused was the one who was injured first I sentence the accused to 6 months probation.
A. MABEYA
JUDGE
05/03/2019