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Court of AppealDismissedCriminal Appeal 79 of 2009· [2009] KECA 83 (KLR)

Silas Mzee Buluma v Republic

Court of Appeal of Kenya
23 October 2009
ROR. S. C. OmoloEOE. O. O'KubasuJNJ. G. Nyamu
852 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that six years' imprisonment for manslaughter is proportionate, especially when the offender used a knife on an unarmed person.

What this practically means

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Executive summary

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The appellant, Silas Mzee Buluma, a watchman, was initially charged with the murder of Stanley Shunguli Isayi, committed at Kiungani Trading Centre on 13th November 2004. The charge was substituted with manslaughter, to which he pleaded guilty before Ombija J of the High Court at Kitale on 29th January 2009 and was sentenced to six years imprisonment. The facts accepted on plea were that the appellant intervened in a fight between the deceased and the deceased's brother by whipping them; the deceased turned on him and the appellant stabbed him in the lower abdomen with a knife, causing death from internal bleeding, hemorrhage and shock. On appeal to the Court of Appeal at Eldoret, the appellant, acting in person, complained that the trial judge failed to consider the four years he had spent in custody and his mitigation, and that the sentence was harsh. The State, through Senior Principal State Counsel Andrew J. Omutelema, countered that the custody period had been taken into account - otherwise the sentence would have been ten years - that mitigation was considered, and that use of a knife against an unarmed deceased was excessive force. The Court agreed with the State, holding that six years for an unlawful killing was not by any standard harsh or excessive, and dismissed the appeal, upholding the sentence. Judgment of the whole court delivered by a bench of Omolo, O'Kubasu and Nyamu JJA on 23rd October 2009.

Key legal issues

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01

Whether the period spent in custody and the appellant's mitigation were considered in sentencing

Holding

The Court accepted the State's submission that the trial court had taken both the four-year custody period and the mitigation into account, otherwise the sentence would have been ten years

Reasoning

The State submitted, without contradiction from the record, that the superior court accounted for the four years in remand, since otherwise the sentence would have been ten years, and that mitigation was evidently considered before sentencing. The Court, having evaluated the facts and rival submissions, agreed with the State and found no basis for interference with the sentence.

p. 2
02

Whether the six-year sentence for manslaughter was harsh or excessive

Holding

The sentence was neither harsh nor excessive and was upheld; the appellant's use of a knife on an unarmed deceased, despite having a whip, amounted to excessive force

Reasoning

The appellant was a volunteer intervening in a fight between two brothers, but the deceased was unarmed and the appellant had both a whip and a knife, choosing the knife and causing death. Against the gravity of an unlawful killing, six years' imprisonment was proportionate, so the appeal against sentence failed.

p. 2

Legal principles established

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  • A six-year imprisonment sentence for manslaughter is not, by any standard, harsh or excessive, particularly where the offender used a lethal weapon against an unarmed deceased rather than a less dangerous means at his disposal
  • Choosing a more lethal weapon (a knife) over a less lethal one (a whip) against an unarmed person constitutes excessive force

Court orders

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  1. 1.The sentence of six years imprisonment imposed by the High Court is upheld
  2. 2.The appeal is dismissed
On appeal from
High Court of Kenya at Kitale
H.C.CR.C. No. 53 of 2004
Jurisdiction invoked
First appellate jurisdiction over appeal against sentence from the High Court (Criminal Appeal 79 of 2009)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Silas Mzee Buluma v Republic", Case Analysis (2009). Criminal Appeal 79 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/83/eng@2009-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.