[1] MOHAMMED SHEIR alias 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. Nyawira represented the accused person but she did not attend the sentencing on two occasions. The court tried reaching out to her but she was non responsive. Her client opted to mitigate on his own behalf.
The court weighed between appointing another advocate and allowing him to mitigate in person and went for the later. This is because despite the nature of the offence and the strict sentence, this case was peculiar.
[4] On record is a pre-sentence report dated 20th June, 2024 which shows that:
The offender person was previously married to Aisha Mohammed Said and they had together sired two children, Yasin Moahmed eight years and Marriam Mohamed six years. He separated with the wife who left out the marital union and went back to her parental home in Mwandoni area of Kisauni Sub County within the Mombasa County. After separation, his wife left to the United Aram Emirates to seek greener pastures.
[5]That the offender bears responsibilities as a father and as well supports his jobless and ailing single mother. The family depends on him for basic needs, school fees and general upkeep and also supporting his ailing mother. Without him in the family reports big socio-economic gap and related challenges in meeting basic needs and upbringing.
[6]He is a resident of Makadara Grounds area in Old Town area of Mvita Sub County. He has resided there for many years. He lives in a rental house in the same neighbourhood with his mother and rest of the family members.
[7] The accused person is reported to have a history of hard drug abuse. He has in the past used heroine, cannabis, tobacco and khat (muguka). He reports to have stopped abusing the said drugs though he portrays some signs of abuse though this might not be a challenge towards integration.
[8]The offender is a well-known man in the community. The offender person resides in Makadara area in old Town, where he lives with his mother. Most of the community members here and associates to the deceased child’s mother are still angered by the action. These associates are feared to be holding a grudge with the accused person. His release may give rise to more tension and they may go ahead and cause a revenge attack towards the accused person.
[9]The victim could not be easily traced and was not interviewed.
[10] The court has gone through the Judgment and notes with great concern that the convict did not have any ill motive against the deceased child. If anything, he was a care giver who was out to rescue the child from the harsh elements.
[11] The mother to the deceased child on the other hand appears to have been grossly negligent though a minor then. Like the convict, they were living in the streets and were taken to substance abuse.
[12] On the fateful night she is said to have abused alcohol and miraa up to 4.00 a.m. Subsequently, she went into hiding and took long to get her to come to give evidence and she could not even be traced to
be interviewed to the pre-sentence report.
In his mitigation the offender continued to argue his innocence but asked the court to have mercy on him as he loved the child.
Ms Maina for the state urged the court to rely on the sentence report
[13] The court has considered the accused person’s mitigation as well as the peculiar circumstances of this case especially that the convict, a drug addict was looking after the child in issue.
[14] The Supreme Court decision in Muruatetu 1gave the court the leeway to consider the circumstances of each case, and ruled the mandatory death sentence for murder is unconstitutional.
[15] Based on that, I hereby sentence the accused person to serve prison sentence of 3 years. The same to start running from the date he was arraigned in court first which is 13/2/2023. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 11TH DAY OF JULY 2024
W. K. MICHENI
JUDGE
In the presence of:
Mohammed Sheir alias Papa Accused
Ms. Wakoli for the Accused
Ms. Maina for Prosecution
Bebora Court Assistant.
Right of appeal explained in Kiswahili and the offender warned that the the former street family may be hostile. He is advised to avoid substance abuse