REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Civil Appeal 260 of 2003

KILULU MUTUA ………………………………….....…….…………. APPELLANT

VERSUS

REPUBLIC  ………………………………………………………… RESPONDENT

(Being an appeal from the judgment of the Senior Principal Magistrate Mr J.R Karanja Machakos Criminal Case  No. 1661 of 2003 dated 2/9/2003)

JUDGMENT

1.    The Appellant herein, Kilulu Mutua was the accused person in Machakos SPM’S court Criminal Case Number 1661/2003.  He had been arraigned there on 11/6/2000 to face the charge of manslaughter contrary to section 202 and section 205 of the Penal Code.  It was alleged that on 28/11/2002 at Kaunguni sub-location in Makueni District within Eastern Province he unlawfully killed Ndambuki Mutua.  He pleaded guilty and was sentenced to serve 25 years in prison. His appeal is limited to sentence only.

2.    In his grounds of appeal, he argues that he was ill at the time of the offence and that he is a young man and seeks reduction of the sentence as he is now remorseful and promises to reform.

3.    As I understand it an appellate court can only interfere with a sentence lawfully imposed if it is properly shown that;

i.   the trial court overlooked some material factor;

 ii.   the trial court took into account some immaterial factor;

iii.   the trial court acted on some wrong principle or

iv.   the whole the sentence is manifestly excessive in the special circumstances of the case – See Wanyema vs R (1973) E.A. 494.

4.    In this case, the facts as read out before sentence were as follows;

“On the material date the accused proceeded to the shop of one Matee and requested to enter inside.  On entering, the accused started beating the said Matee and took away Kshs.11,000/=.  Matee reported to the actual owner of the shop i.e. Ndambuki Mutua the deceased herein.  The deceased went in search of the accused and he caught up with him.  The accused without provocation then attacked the deceased using arrows.  He shot the deceased with several arrows. The deceased as a result suffered fatal injuries.

Matter was reported to the police.  Accused was arrested and charged accordingly after he had gone into hiding.”

5.    It is quite evident that the Appellant’s behaviour was inexplicable and his rage was unnecessary.  The sentence of 25 years cannot be excessive in an offence that carries life imprisonment.  I see no reason whatsoever to tamper with it.

6.    The Appeal herein is dismissed.

7.    Orders accordingly.

Dated and delivered at Machakos this 16^th day of December 2008.

ISAAC LENAOLA

JUDGE

In presence of:      Appellant in person

Mr O’Mirera for Republic

ISAAC LENAOLA

JUDGE