Republic v Peter Mbai Musembi [2019] KEHC 6732 (KLR)

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