The Kibera Law Courts in Nairobi.
A death row inmate, whose homemade gun jammed while attempting to rob a teenage pedestrian in Kileleshwa, Nairobi, has been handed a 20-year jail term following an appeal to "give him another chance in life".
Erick Malesi Musungu had been sentenced to death in July 2024 by a magistrate's court for two offences of attempted robbery with violence and being in possession of an imitation of a firearm.
Following an appeal by Musungu, Justice Diana Kavedza substituted the sentence to 20 years on Tuesday.
The judge found that the initial sentence "shattered all hopes of the inmate for rehabilitation or having another chance to start afresh".
"The appellant was sentenced to death for the offence of attempted robbery and seven years imprisonment for the offence of possessing an imitation of a firearm, where the latter was held in abeyance. Section 329 of the Criminal Procedure Code, gives judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed, despite another sentence being provided for under the Act in which the offence is prescribed," said the judge sitting at the High Court in Kibera, Nairobi.
She, however, added that given the direct evidence and immediate arrest, the prosecution had proved its case beyond a reasonable doubt, and the conviction on both counts stands.
Failed mission
Musungu attempted to rob a 17-year-old boy while holding him at gunpoint along Laikipia Road in Kileleshwa, Nairobi, on June 12, 2024, but was foiled by the young man.
The victim, Stephen Odhiambo, testified that he was walking home with his friend when Musungu and another man on a motorbike confronted them, demanding their belongings.
When he refused, Musungu struck his shoulder with a stick and brandished a homemade firearm to instill fear.
Mr Odhiambo and his friend retaliated, disarming the robber, while the other man fled on the motorbike before the police arrived.
Police Constable Matthew Ndatho, testified that while patrolling Kileleshwa, he was alerted about an incident on Laikipia Road and upon arrival, he found Musungu being assaulted by a crowd.
He calmed the situation and secured a motorcycle and a firearm at the scene. Investigations revealed that the motorcycle was registered to Watu Credit. The imitation firearm and bullet were submitted to a ballistic expert.
In the judgment, Justice Kavedza said the prosecution had established that Musungu used violence, was armed and acted with an accomplice, satisfying the elements of attempted robbery with violence under the Penal Code.
"On the charge of possession of an imitation firearm, CPL Simon Muchori, a ballistics expert, examination confirmed the object had chambers, barrels, and a firing pin but was non-functional. His report was admitted as evidence," said the judge. After testing the object, it was confirmed as a firearm and the bullet was classified as ammunition.
On identification, the judge said Musungu was properly identified by both the complainant and investigating officer.
In his defence, Musungu testified that on the material day he had just dropped off a customer when two boys stopped him and asked him to take them to Kileleshwa apartments.
As he ferried them, one of them told him to stop and proceeded to alight. He then realized that they had not paid him and began following them.
Suddenly, they attacked him, saying that he was a thief. The police later arrived and he was arrested and charged with the criminal offences.
