Republic v Fredrick Mmbala Musoti [2019] KEHC 3357 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO. 34 0F 2017

LESIIT, J

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

VERSUS

FREDRICK MMBALA MUSOTI......................ACCUSED

RULING ON SENTENCE

1. The accused FREDRICK MMBALA MUSOTI was convicted of Murder contrary to Section 203of the Penal Code. The offence of murder carries a death sentence as provided under Section 204 of the Penal Code.

2. I have considered that the State has no previous record of convictions of the accused and have opted to treat him as a first offender.

3. Ms. Ade Learned Defence counsel mitigated on behalf of the accused. Counsel urged that the accused was a first time offender and was remorseful for his actions. Counsel urged that the accused regrets that his actions led to the loss of his partner. Counsel finally urged that the accused was requesting for a lenient sentence and that he ought to be granted a chance for rehabilitation.

4. I have considered the mitigation offered by the defence counsel on behalf of the accused. I have also considered that the prosecution has treated the accused as a first offender.

5. I have considered that the accused was incarcerated for a period of five (5) months before he was released on bond, and the short period of ten (10) days he has served after the conviction.

6. Regarding mitigating circumstances, the supreme court in Francis Karioko Muruatetu & another v Republic (2017)eKLR had the following to state:

“We are in agreement and affirm the Court of Appeal decision inMutisothat whilst the Constitution recognizes the death penalty as being lawful, it does not provide that when a conviction for murder is recorded, only the death sentence shall be imposed. We also agree with the High Court’s statement inJoseph Kaberia Kahingathat mitigation does have a place in the trial process with regard to convicted persons pursuant to Section 204 of the Penal Code. It is during mitigation, after conviction and before sentencing, that the offender’s version of events may be heavy with pathos necessitating the Court to consider an aspect that may have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness.”

“If a Judge does not have discretion to take into account mitigating circumstances it is possible to overlook some personal history and the circumstances of the offender which may make the sentence wholly disproportionate to the accused’s criminal culpability. Further, imposing the death penalty on all individuals convicted of murder, despite the fact that the crime of murder can be committed with varying degrees of gravity and culpability fails to reflect the exceptional nature of the death penalty as a form of punishment. Consequently, failure to individualize the circumstances of an offence or offender may result in the undesirable effect of ‘over punishing’ the convict.”

7. I have considered the mitigation by the accused and I find that the accused offered no Pathos that led to the tragedy.

8. I have considered the circumstances of this case. The accused and the deceased were living as man and wife. They had no children between them. However living in the same home was the house girl aged 16 years at the time and two children of the deceased (one of them a niece) aged 9 and 12 years.

9. I find the manner in which the accused attacked the deceased was barbaric. He hacked the deceased on her mouth slicing her mouth and jaw open, he slashed the deceased on various parts of the head, limbs and also severed one wrist but for the skin which held it back. All these was done inside a small room in the presence of the children who watched the entire attack as they screamed in terror.

10. The fact that the accused slashed the deceased several times in full glare of the minor children of the deceased will affect these children for the rest of their lives.

11. Due to the nature of their relationship this was domestic violence. The accused action was premeditated. All these factors are aggravating circumstances which causes this offence to be more serious.

12. Having considered all the facts and circumstances of this case, I find that the justice of this case requires a custodial sentence. The same should allow the accused do some self-reflection on the effect of his actions and have him appreciate the impact it had on the small children who witnessed his actions. I will therefore sentence the accused to life imprisonment.

13. The accused has a right to appeal against the conviction and sentence within 14 days of today.

DATED, SIGNED AND DELIVERED THIS 17TH DAY OF OCTOBER, 2019.

LESIIT, J

JUDGE