Republic v Abdulla [2023] KEHC 23509 (KLR)

Republic v Abdulla (Criminal Case 4 of 2016) [2023] KEHC 23509 (KLR) (Crim) (13 October 2023) (Sentence)

Neutral citation: [2023] KEHC 23509 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 4 of 2016

K Kimondo, J

October 13, 2023

Between

Republic

Prosecutor

and

Ayale Musa Abdulla

Accused

Sentence

1. The accused pleaded guilty to the lesser but cognate offence of manslaughter under a plea agreement recorded on April 25, 2023.

2. On January 1, 2016 at Eastleigh Nairobi, a petty argument over control of a remote and change of a TV channel led to a confrontation between the accused and his brother Ibrahim Hussein. The two were separated by Abdisigad Mohamed Diriye (the deceased in this case).

3. The following day, the accused found the deceased outside a barber shop. They started arguing in low tones. Then the accused punched him on the face. They both fell down. The accused then drew a knife and stabbed the deceased in the right rib or right lower back.

4. The deceased was rushed to Dork Care Hospital but succumbed to the injuries the same afternoon. The accused attempted to abscond but was apprehended a short distance away, thanks to a car that blocked him. The murder weapon was recovered from his right pocket. He was then booked at Pangani Police Station and initially charged for murder. At the time of entering into the present plea agreement, four prosecution witnesses had testified.

5. The autopsy by Dr. Dorothy Njeru (exhibit 1) confirms that the cause of death was “exsanguination due to penetrating sharp force trauma”.

6. I have considered the mitigation tendered by the accused’s learned counsel, Ms. Gulenywa Jonathan. I have also paid heed to the pre-sentencing report dated June 8, 2023 under the hand of Ms. Ayuma Otukho, Probation Officer, Nairobi. The accused is aged about 28 years and a first offender. He regretted his actions that were borne out of anger and which led to the death of his cousin. He prayed for leniency.

7. According to the pre-sentencing report the accused was abusing drugs and had anti-social behavior. The deceased was the only son and died at the early age of 24. His parents died soon thereafter. His aunt blames their deaths on the devastation caused by this homicide. There are conflicting versions of whether or not any reconciliation efforts bore fruits. I thus find there is no evidence of such reconciliation.

8. Whereas the accused’s family pleads for compassion and a non-custodial sentence, the family of the deceased is vehemently opposed to it. They have a right to so under the Victims Protection Act. Learned Prosecution Counsel, Ms. M. Kigira, prayed for a commensurate sentence fitting the facts at hand.

9. Sentence should be commensurate to the moral blameworthiness of the offender but also guided by the nature and gravity of crime. Manslaughter is a grave felony and attracts a sentence of life imprisonment. The circumstances here call for a lengthy custodial sentence. Justice will not be served by a non-custodial punishment.

10. I accordingly sentence the accused to serve seven (7) years in jail. In accordance with section 333 (2) of the Criminal Procedure Code, the period spent in remand custody from the date of his arrest on January 2, 2016 to today’s date shall be deducted from the sentence.

11. The accused has a right of appeal to the Court of Appeal within 14 days and as per the rules of that court but only on the sentence. A copy of the proceedings and sentence shall be supplied to him immediately.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER 2023. KANYI KIMONDOJUDGE