Republic v F W N alias N WA K [2017] KEHC 1612 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 47 OF 2014

REPUBLIC...............................PROSECUTOR

VERSUS

F W N alias N WA K…….…………..ACCUSED

SENTENCE

1. The accused F W Nalias N WA K was convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on 24th day of April, 2014 at Mathare Area 3C in Starehe District within Nairobi County murdered DAVID MASESI MBUVI.

2. In mitigation the accused through her Advocate on record submitted that she was remorseful for her actions and that she has had a mental problem throughout the period of trial which should be taken into account.  It was submitted that the accused is a mother of a six year old boy without a father and therefore the interest of that child should be taken into account.  The state on the other hand urged the court to treat the accused as a first offender.

3. In compliance with the Sentencing Policy Guidelines,  the court ordered for pre-sentencing  report in which it was stated that the accused suffers from schizophrenia with a long history  of series of abnormal behaviours for which she is on medication. It was stated further that the accused child stays with her parents and that at some point the two families initiated reconciliation and possible compensation in line with the Akamba community tradition but this failed.  The area chief was reported to had mentioned that the offender was in a gang that used to terrorize members of the public in the area and that the environment where the offender hails from is not conducive for any form of rehabilitation.

4. On the victim impact statement it was stated that the deceased family was still bitter for having lost their only son and prays for a deterrent sentence.  The Area Assistant Chief stated that the accused can best benefit from a custodial rehabilitation as the home environment is not conducive for a non-custodial sentence.

5. The purpose or objectives of sentence as per the Judiciary Sentencing  Guidelines No. 4 are as follows:-

1)Retribution – to punish the offender for his/her criminal conduct in a just manner.

2)Deterrence – to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.

3)Rehabilitation – To enable the offender refrain from the criminal conduct and become a law abiding person.

4)Restorative justice – To address the needs arising from the criminal conduct such as loss and damages.  Criminal conduct ordinarily occasion victims’, communities’ and offenders’ needs and justice demand that these are met.  Further to promote a sense of responsibility through the offenders contribution towards meeting the victims needs.

5)Community protection: to protect the community by incapacitating the offender.

6)Denunciation: to communicate the community’s condemnation of the criminal conduct.

6. I have taken into account the mitigating factors, the best interest of the accused five (5) year old son and the pre-sentencing report and have come to the conclusion that this is a clear case where the court ought to exercise judicial discretion in sentencing the accused person outside the limits of Section 204 of the Penal Code.

7. Balancing the cry of the family of the deceased and the Area Assistant Chief for deterrence sentence and custodial rehabilitation against the interest of the accused person and her five year old son I have come to the conclusion and order that the accused be and is hereby sentenced to ten (10)  years to be served as follows:- the first seven (7) years in custody to enable her continue with custodial rehabilitation and treatment for her mental condition and three (3) years thereafter on probation for further rehabilitation and placement in society.

8. The accused has a right of appeal on both conviction and sentence while the prosecution has a right of Appeal on the legality of the sentence passed herein and it is so ordered.

DATED, SIGNED and DELIVERED at Nairobi this 5thday of December, 2017

………………

J. WAKIAGA

JUDGE

In the presence of:-

Mrs. Kinoti for the State

Mr. Shimaka for the accused

Accused present

Court clerk Tabitha