[2019] KEHC 6732 (KLR)
The court considered the accused's guilty plea to a lesser charge, lack of previous criminal record, remorse, reconciliation efforts between the families, and time already spent in custody. However, the court found that the circumstances of the offence, including the unexplained and relentless attack on the...
Source-derived case information.
- Citation
- [2019] KEHC 6732 (KLR)
- Parties
- Applicant: Republic; Defendant: Peter Mbai Musembi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 77 of 2016
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- accused sentenced to five years imprisonment for manslaughter
- Judges
- AM Cockar
- Legal Topics
- Manslaughter, Plea Bargaining, Sentencing Principles, Mitigation, Victim Impact Statement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Peter Mbai Musembi
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused should receive a custodial or non-custodial sentence for manslaughter.
- 2 What mitigating and aggravating factors should influence the sentence imposed.
Ratio Decidendi
The court considered the accused's guilty plea to a lesser charge, lack of previous criminal record, remorse, reconciliation efforts between the families, and time already spent in custody. However, the court found that the circumstances of the offence, including the unexplained and relentless attack on the deceased, warranted a custodial sentence. The motive for the attack remained unknown, and there was no evidence of provocation. The court determined that a non-custodial sentence would be inappropriate given the seriousness of the offence and the need for deterrence. Consequently, the accused was sentenced to five years imprisonment for manslaughter.
Court Disposition
accused sentenced to five years imprisonment for manslaughter
Orders
- The accused is sentenced to five (5) years imprisonment.
- The accused has a right of appeal against the sentence.
Full Case Text
Judgment text and source record
26 paragraphs
REPUPLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HIGH COURT CRIMINAL CASE NO. 77 OF 2016
LESIIT J
REPUBLIC ....................PROSECUTION
VERSUS
PETER MBAI MUSEMBI .....ACCUSED
RULING ON SENTENCE
1. The accused PETER MBAI MUSEMBI was initially charged with murder contrary to Section 203 of the Penal Code. After a successful Plea Bargaining Agreement, the prosecution reduced the charge to that of manslaughter contrary to Section 202 of the Penal Code to which offence the accused pleaded guilty.
2. I have considered that the prosecution stated that they had no previous records of the accused therefore treated him as a first offender.
3. Mr. Masara Learned Defence Counsel gave mitigation on behalf of the accused. In his submissions, Counsel urged that the accused was 27 years old and therefore just a youth who was at the prime of his life. He said that the accused did manual jobs and was married with two children.
4. Mr. Masara urged that the accused regretted the offence stating that at the time of the incident he and the accused were drunk and that he acted under the influence of alcohol. Counsel submitted that the accused has reconciled with the family of the deceased and pleads for a non-custodial sentence.
5. In addition to mitigating factors given by the defence counsel, I have considered the circumstances of the case as per the signed agreement. The facts reveal that the accused was drinking with the deceased in a local Pub and that they left together. The deceased was later found dead besides the road a few meters from the Pub. The accused was however found in his house asleep and drunk. The murder weapon which was the accused crutch was found besides the accused and it had bloodstains. The deceased suffered serious injuries in the respiratory system, on the head and in the nervous system.
6. The motive for the attack is not apparent from the facts. There is also nothing in the facts to reveal what could have led to the attack. Neither is there any evidence of provocation of any kind.
7. Before passing Sentence in this case, I called for and received a Re-Sentencing Report from Probation. Ms. Abima a Probation Officer filed one dated 16th May 2019. It is quite elaborate. It contains reactions from the family of the accused, Personal history and attitude towards the offence.
8. There is a Victim Impact Statement from the deceased family member. The deceased brother indicated that his family has bestowed the Atrangwa clan to address the matter and were not in a position to address the probation office directly.
9. I have considered the above factors and the fact the accused pleaded guilty to the lesser charge thus saving court precious time. I also appreciate the fact that the deceased family are trying to reconcile with accused family by use of the customary laws.
10. I have also considered Section 205 of the Penal Code which provides for the sentence of manslaughter as life imprisonment.
11. The accused has been in custody since 9th November, 2016 to 17th October 2018, a period of one year and eleven months before he was released on bail pending trial.
12. Having considered all these factors, I find it inappropriate to give a non-custodial sentence in this case for the reason that what led the accused to relentlessly attack the deceased remains unknown.
13. In the circumstances I find it appropriate to sentence the accused to five (5) years imprisonment.
14. Accused has right of appeal against the sentence.
DATED AT NAIROBI THIS 21ST DAY OF MAY, 2019.
LESIIT J
JUDGE