Republic v Vincent Sabatia Musazia [2020] KEHC 968 (KLR)

REPUPLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

HIGH COURT CRIMINAL CASE NO. 4 OF 2017

LESIIT, J

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

VERSUS

VINCENT SABATIA MUSAZIA.............................................ACCUSED

RULING ON SENTENCE

1. The accused VINCENT SABATIA MUSAZIAwas arraigned in court on the 27th January 2017 with one count of murder contrary to section 203 as read with section 204 of the Penal Code.  The particulars of the offence were:

“On the night of 14th/15th January, 2017 at Congo Area in Dagoretti Sub-County within Nairobi County murdered FLORENCE MUSEMBI BWAVI.”

2. Trial into the case commenced before Wakiaga, J on 27th November 2018.  The learned Judge heard five witnesses, the evidence of the fifth witness being taken on 13th February 2020.  The case was adjourned to be continued on 20th and 21st May 2020.  However due to the COVID-19 pandemic the case was not heard as scheduled.

3. On 18th October 2020, the defence informed the court that they had offered a Plea Bargain in the matter and the State was agreeable.  The ODPP and Accused did enter into a Plea Agreement which was filed in court.

4. The State applied to substitute the information against the accused on 9th November, 2020 which the court allowed.  The accused pleaded guilty to a substituted charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

5. In the filed affidavit dated 23rd November 2020, the accused person deposed his mitigation.  The accused deposed that he was married to the deceased in this case and that their union was blessed with a child who is now 7 years old.  He deposes that he was the sole bread winner of the family including his mother who has cancer and has lacked financial support for medication as a result of his incarceration.

6. The accused deposes that he is HIV/AIDS positive and finds it a challenge to get medication while in custody.  He deposes he has been in custody since 15th January, 2017.

7. He sets out the training sessions he has attended, including guidance and counselling and religious activities; and the skills acquired all which, he asserts, have made him a better person.

8. The accused concludes by stating that he is remorseful for the events leading to deceased death, and intends that he has sought forgiveness from the Lord for his actions.  He claims that none of his actions were intentional or pre-meditated but he admits his actions led to deceased death.

9. The accused prays for a non-custodial sentence, and that if the court is not so inclined, to take into account period of incarceration from 15th January, 2017 while passing custodial sentence.

10.    The State treated the accused as a first offender.

11.  The court called for a Probation Pre-Sentence Report which was filed on 1st December, 2020.  In the Report the attitude of the accused, accused family and deceased family to the offence is clearly spelt out.

12.  I note that the accused has acknowledged his actions expressed great remorse for deceased death.  I noted some members of the accused family, especially his parents and sister Edna are ready to help re-integrate him into the community and to assist in his rehabilitation.

13.  The family of the deceased have indicated that they have forgiven the accused but express desire for the accused and family to seek forgiveness from them. I do encourage reconciliation between the two families and I do strongly recommend that Probation Office organizes the same.

14.   I have taken into account all the factors contained in this ruling including the statutory and policy matters of accused past clear record, period spent in custody pending trial, his remorsefulness, and also the fact he pleaded guilty to the charge, despite the fact that the case against him was not far from being concluded.  Also considered is the recommendation by Probation Office.

15.   This is a serious offence.  A life was lost as a result of gender based violence.  The accused was husband of the deceased and reason for the attack that led to deceased death was food.

16.   I do appreciate accused acknowledges the role he played in the death of the deceased and his remorsefulness which were documented and also demonstrated.

17.  Having taken all into account I find that the accused should serve a sentence of 8 years imprisonment from the date of arraignment in court. For avoidance of doubt that date is 27th January, 2017.

18.  Those are my orders.

DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF DECEMBER, 2020.

LESIIT, J.

JUDGE

In the presence of:

Kinyua.....................................Court Assistant

Maina...........................................For the State

Mr. Farah...............................For the Accused

Accused.................................................Present

LESIIT, J.

JUDGE.

3RD DECEMBER, 2020