[1] ELIJAH IJAKAA PAPA had been charged with an offence of murder contrary to Section 203 and 204 of the Penal Code.
[2] In terms of Section 203 as read with Section 204 of the Penal Code the accused, upon being convicted, shall be sentenced to death.
[3] Ms. Maina represents the prosecution, while Ms. Magolo represents the convict.
The matter proceeded for full hearing and he was found guilty to the offence of murder contrary to section 203 as read with section 204 of The Penal code.
[4] The court called for both a victim impact statement as well as a pre sentence report.
The two were prepared by Stephen Muthoka a Senior probation officer.
5. MR Magolo and Ms Maina made brief oral submissions after the reports were filled. Each side picked the parts of the reports that favored their positions.
6.Miss Maina relied on the two reports and urged the court to mete out a custodial sentence bearing in mind the restorative objective of sentencing so that the victim’s family feel that justice was served.
- Mr. Magolo on his part urged the court to have mercy and to be lenient as the offender was a first offender, a bread winner and can be rehabilitated. He pointed out that the convict has been in custody for 6 years . He urged the court to discharge the convict under section 35 of the Penal code.
8.Even though Mr. Magolo submitted that the Convict was a first another offender, the reports on record show that the offender has had previous occasional dalliance with the law. He was convicted for causing grievous harm and he also had another charge of murder. This points to a person prone to violence.
9. I have looked at the Judgment, the two reports and the submissions. As noted therein the victim was a stranger to the convict. He is a young man who had also fallen on the wrong side of the law. He had been sent to the rehabilitation centre from which he escaped and ended up in the hands of the convict.
10. The report shows that the offender continues to maintain his innocence and did not appear to regret his actions at all.
11.From the above, he does appear to have learnt any lesson and accordingly the court will not be lenient
12.The court takes note of the period he has been in custody and hereby sentences him to 20 years imprisonment.
13.The sentence to start running from the date he was first arraigned in court which is 5th day February 2018.
1. It is so ordered
- Dated , signed and delivered virtually this 26th day of September 2024.
Wendy Kagendo
Judge
Present
Accused person and his advocate Mr. Magolo
MS Maina for the state
Ms Bebora court Assistant
.
[13] The court has considered the accused person’s mitigation as well as the peculiar circumstances of this case especially that the convict, has a mental ailment compounded by substance abuse. Further his family is unable to cater for his treatment.
The convict has been in custody for 4 years now and the family appears to have cut links with him. Two bail report were prepared and both show that the family is both un willing and unable to meet the special needs of this offender.
The court agrees that treatment is the best way for this offender but unfortunately a non custodial sentence will not necessarily gurantee that he gets the treatment. He had been hospitalized before this horrendous act and the family discharged him leading to the heart wrenching incident.
He has not yet recovered and therefore he still posses a danger to himself and the society.
The report shows that he is receiving care and treatment in two facilities near the prison. So this is one of those very peculiar cases where a custodial sentence is actually beneficial to the offender.
[14] The Supreme Court decision in Muruatetu gave the court the leeway to consider the circumstances of each case, and ruled the mandatory death sentence for murder and consequently manslaughter unconstitutional. is unconstitutional.
[15] Based on the, I hereby sentence the accused person to serve prison sentence of 10 years. The same to start running from the date he was arraigned in court first which is 9th July 2021. In the meantime he should continue receiving treatment at the rehabilitation center (MEWA) and a mental hospital where he was previously treated at (Port Reitz Hospital.
Should he improve or the circumstances change, the sentence may be reviewed
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 25th TH DAY OF JULY 2024
W. K. MICHENI
JUDGE
In the presence of
Accused
Ms. Nabuona for the Accused
Ms. Maina for Prosecution
Bebora Court Assistant.