A man who killed his neighbour a debt received a reprieve after the Court of Appeal set aside the death sentence imposed on him and substituted it with 15 years imprisonment.
Simon Mulunda was convicted in 2009 and sentenced to death.
Judges Erastus Githinji, Hannah Okwengu and Jamila Mohammed, in their ruling, said there was sufficient evidence against Mulunda and he was properly convicted.
“We believe that in the circumstances of this case, had the learned judge had the benefit of the Supreme Court decision, he would not have imposed the death penalty. Accordingly, we find it appropriate to apply the Supreme Court decision and set aside the death penalty imposed on the appellant and substitute thereto a term of imprisonment of fifteen years considering that the appellant killed the deceased in the course of a fight over a debt,” they ruled.
Mulunda was charged in 2004 jointly with Stephen Waluku with the murder of William Khisa.
Waluku was acquitted due to lack of evidence.
During trial, seven witnesses testified for the prosecution while Mulunda gave sworn evidence denying the offence.
David Wafula, who is father of the deceased, said he was on his way home when he passed by the house of Mulunda, and overheard Khisa asking Mulunda to give him "his things" so that he could leave.
Wafula decided to enter into the home of Mulunda. On arrival, he saw him, the co-accused and the deceased.
He then saw Mulunda, hit the deceased with a rake on the head while the co-accused stood by.
Mulunda’s wife screamed and Wafula’s other son called Namasaka.
Wafula said he sent Namasaka to get a bicycle from his home and he then carried took the deceased to Webuye District Hospital, but he succumbed to his injuries .
A postmortem found that externally the deceased had a fracture on the top of the skull with injury to the brain and was bleeding.
He said the cause of death was cardiac arrest due to increased intracranial pressure due to fracture of the skull.
In his defence, Mulunda claimed it was Wafula and his sons, including the deceased, who went to his home and attacked him.
This version of events was not credible, the court said.
“The upshot of the above, is that we dismiss the appellant’s appeal against conviction but allow the appeal against sentence to the extent of setting aside the death penalty and substituting thereto a sentence of 15 years imprisonment effective from 30th July, 2009,” the judges ruled.
