[2018] KEHC 2276 (KLR)
The court found that although the deceased was the initial aggressor, the accused used excessive force which resulted in the deceased's death. The court considered the mitigation, the pre-sentence report recommending a non-custodial sentence, and the need for reconciliation between the families. However, the court...
Source-derived case information.
- Citation
- [2018] KEHC 2276 (KLR)
- Parties
- Applicant: Republic; Defendant: Samwel Mboya Congo alias Tom
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 34 of 2015
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted and sentenced
- Judges
- AC Mrima
- Legal Topics
- Manslaughter, Sentencing Principles, Mitigation, Excessive Force
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samwel Mboya Congo alias Tom
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused used excessive force resulting in the death of the deceased.
- 2 Whether the accused is suitable for a non-custodial sentence given the circumstances and mitigation.
Ratio Decidendi
The court found that although the deceased was the initial aggressor, the accused used excessive force which resulted in the deceased's death. The court considered the mitigation, the pre-sentence report recommending a non-custodial sentence, and the need for reconciliation between the families. However, the court determined that a non-custodial sentence was not appropriate at this time due to the seriousness of the offence and the need for justice. Consequently, the accused was sentenced to five years' imprisonment for manslaughter.
Court Disposition
convicted and sentenced
Orders
- The accused is sentenced to 5 years’ imprisonment.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CRIMINAL CASE NO. 34 OF 2015
REPUBLIC.......................................................................PROSECUTOR
VERSUS
SAMWEL MBOYA CONGO alias TOM..............................ACCUSED
SENTENCE
1. The accused person herein, Samwel Mboya Congo alias Tom,was charged with the murder of his friend Andrew Dennis Young Ogada (hereinafter referred to as ‘the deceased’). Following a trial, the accused person was found guilty and convicted of the offence of Manslaughter.
2. This Court received the accused person’s mitigations as well as a Pre-Sentence Report which was filed on 14/11/2018. I have carefully considered the contents of the Report alongside the mitigations and the Prosecution’s submissions. The Report captures the home environment as conducive for a non-custodial sentence. The accused person likewise prayed for such a sentence in his mitigations.
3. This Court is alive to the circumstances of this case. It was the deceased who attacked the accused person first on the road and later at his house. This Court found the accused person guilty of the use of excessive force that was fatal to the deceased.
4. I have taken into account the circumstances of the case and the mitigations tendered as well as the recommendations in the Report. On balancing the interests of both sides, I find that the accused person is not suitable for a non-custodial sentence., at least for now. There is need for the family of the accused person to forge a reconciliation with the family of the deceased more so given that they are neighbours. The accused person is hence sentenced to 5 years’ imprisonment.
Orders accordingly.
DELIVERED, DATEDandSIGNED at MIGORI this 23rd day of November 2018.
A. C. MRIMA
JUDGE