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JudgmentThe Republic VS DAVID KILENGWE PAPA3 min read

The Republic VS DAVID KILENGWE PAPA

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING ON SENTENCE

  1. After a full trial, David Kilengwe Papa was found guilty and convicted of the murder of Abdi Ali Dirsame on 3/2/2018.
  2. The court sought a pre-sentence report for accused. The report was filed on 19/03/2024.
  3. From the report the offender is 51 years old married, father of 7 children four of them are still in school. The report presents a person who, 5 years after the offence is remorseful and seeks a non-custodial sentence. This remorse is reflected in the activities that followed his conviction: The report says that members of his family sat down and came up with an agreement to compensate the family of the deceased.
  4. The victim impact statement reveals that the death of the deceased led to the breakup of his family. His wife died soon thereafter, and

his children were separated; the eldest a boy – with different family and the youngest two have been fostered by a couple while living with their maternal grandmother who lives with depression.  It is stated in the report that the family of the victim agreed to forgive the accused – but there is no evidence attached to that effect. There is no evidence that they convened and held this discussion or who this family of the victim were that expressed this view.

  1. The offence of murder carries with it the sentence of death, but under the Constitutional dispensation of the 2010 Katiba, courts reached the decision that it cannot be mandatory in each case as each case must be determined on its own facts and circumstances.
  2. The PACs report recommends a non-custodial sentence on the basis that reconciliation has been put in place and the family of the accused is willing to compensate the family of the deceased.
  3. However it is evident from the report that the alleged reconciliatory/ compensatory efforts were stage managed for purposes of seeking a non-custodial sentence. I say this because, it was never in doubt that it was the offender who shot and killed the deceased, what was being discussed were the circumstances and if indeed the offender and his family were serious about offering the a hand of reconciliation they could have done it in 2019 – or 2020, or 2021 or any other period before the conviction. Nothing was done.
  4. That besides – nothing stops his family from atoning for what he did in addition to the sentence he might serve for the offence.
  5. The record will show that the sentence ruling was adjourned a number of times as the offender appeared before the Deputy Registrar for follow up on treatment orders. It shows that he told the Deputy Registrar that he had an appointment at Lavington hospital – Nairobi, and that he wanted an order directed to law enforcement officers to escort Him there. However the Deputy Registrar upon hearing both the accused and the State directed that he be taken to Makueni County Referral Hospital. This was done and he was accorded treatment, which he acknowledged. . However he continued to insist on being escorted to Lavington.
  6. On the last date for sentence – ruling his counsel Mr. Kioko addressed the court to the effect that the offender was losing his sight. He had instructions that there were medical documents to support this position and to establish that fact, that they needed time to get them from the wife of the offender for the perusa by court. The Ruling was adjourned yet again but in the end  counsel told the court that no such hospital documents were available.
  7. I have nothing on record to establish that indeed the accused is losing his sight
  8. In the circumstances, guided by the Sentencing Policy Guidelines, and on the pre-sentence report which I have considered, and the mitigation factors set out their in. I have weighed these against the aggravating manner in which the offence was committed, and the circumstances of the offender and the victim, the impact of the offence.
  9. It is my view that the matter calls for a custodial sentence. I have considered the period the matter has taken to get to this end, and that the offender would travel long distances to come to court for the last 5 years.
  10. Having said that the offender is sentenced to 10 years’ imprisonment from the date of his conviction i.e. 13/2/2024.

Right of appeal 14 days.

Dated, signed and delivered in open court on 8/5/2024


    The Republic VS DAVID KILENGWE PAPA The Republic VS DAVID KILENGWE PAPA