[2016] KEHC 4851 (KLR)
The court found that the accused stabbed the deceased without provocation and that the violent act was unmitigated by any evidence of mental incapacity. Despite the accused's remorse, first offender status, and family responsibilities, the court held that a non-custodial sentence would not serve the interests of...
Source-derived case information.
- Citation
- [2016] KEHC 4851 (KLR)
- Parties
- Applicant: Republic; Defendant: Joseph Tobiko Kalasinga
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 114 of 2014
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- accused sentenced to 7 years imprisonment for manslaughter, with remand period considered
- Judges
- WA Okwany
- Legal Topics
- Manslaughter, Plea Bargain, Sentencing Principles, Mitigation, Remand Period, Mental Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph Tobiko Kalasinga
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should receive a custodial or non-custodial sentence for manslaughter.
- 2 Whether the period spent in remand should be considered in sentencing.
- 3 Whether the accused's mitigation and mental state affect the sentence.
Ratio Decidendi
The court found that the accused stabbed the deceased without provocation and that the violent act was unmitigated by any evidence of mental incapacity. Despite the accused's remorse, first offender status, and family responsibilities, the court held that a non-custodial sentence would not serve the interests of justice or deterrence. The court emphasized the need to send a strong message that unprovoked violent acts attract severe punishment. Accordingly, the accused was sentenced to seven years imprisonment, with the period already spent in remand to be taken into account.
Court Disposition
accused sentenced to 7 years imprisonment for manslaughter, with remand period considered
Orders
- The accused is sentenced to 7 years imprisonment.
- The sentence shall take into account the period already served in remand custody.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 114 OF 2014
REPUBLIC………………………..……………………..PROSECUTOR
VERSUS
JOSEPH TOBIKO KALASINGA.……………….…………….…ACCUSED
SENTENCE
The accused, JOSEPH TOBIKO KALASINGA, was originally charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. Following a plea bargain agreement dated 16th May, 2016, duly executed by the state and the accused, the accused was charged with the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The particulars of the charge were that on 24th December 2014 at Olmotonyi Sub-location of Moyoi village in Transmara West District within Narok County unlawfully caused the death of MUTOKA OLE SAI alias ONGEI.
The Accused pleaded guilty to the lesser charge of manslaughter and was consequently convicted on his own plea of guilty and therefore the only issue pending the court’s determination is one of sentence.
According to the facts provided by the state, on 24th December 2014 at about 2 p.m., the accused went to take some local brew and on returning home at about 8 p.m. and without uttering a word, he picked up a knife and stabbed the deceased on the chest before running away. The deceased died on 26th December 2014 two days after the attack and a post mortem examination conducted on the body revealed that the cause of death was cardio-respiratory arrest after a stab wound on the left side of the chest.
In mitigation, Mr. Kaburi advocate for the accused submitted that he was a first offender, was remorseful and had, for the period of more than 1 year that he has been in custody, learnt to tame his anger and keep off alcohol. Mr. Kaburi added that the accused was, prior to his arrest, the sole bread winner of his young family of a wife and 2 children. He prayed for a non-custodial sentence.
The court called for the Probation Officer’s pre-sentence and victim impact assessment report which had not been filed as at the time this sentence was being prepared.
I have considered the circumstances surrounding the case and the mitigation tendered by the counsel for the accused. I note that the accused stabbed the deceased out of the blue and without any provocation whatsoever.
The violent actions of the accused can only be equated to the actions of a person who is of unsound mind. The mental assessment carried out on the accused before his trial, however, showed that he was of sound mind and was therefore fit to stand trial.
The mitigation tendered by the accused counsel notwithstanding, I still believe that this is a case where non-custodial sentence would not be appropriate so that the accused, together with others who are in the habit of attacking others without provocation, can learn that such actions attract the heavy wrath of the law.
I therefore sentence the accused to 7 years imprisonment. Such time will take into account the time he has served while in remand. (From date of his first appearance in court).
Delivered, dated and signed in at Kisii on 2ndof June, 2016.
W.A. OKWANY
JUDGE
In the presence of:
Mbelete for the State
Mr. Kaburi for the Accused
Omwoyo court clerk