A businessman who killed three people in a road accident on James Gichuru road in Nairobi 11 years ago, is expected to know his fate today (Friday) in the court.
David Gichuki’s lawyers on Thursday made compelling submissions at the Kibera Law Courts in mitigation as they sought a non-custodial sentence for him with an option of a fine.
The lawyers led by Danstan Omari disputed a probation report that recommended that Mr Gichuki should not be given a non-custodial sentence.
Senior probation officer Judith Epereje, who prepared the presentencing and victim impact assessment report tabled before Senior Principal Magistrate Derrick Kutto, stated that Gichuki was not suitable for a non-custodial sentence.
Ms Epereje said based on the nature of the offence and the offender’s attitude towards the offence, his lack of remorse, the gravity of physical, psychological, emotional and economical trauma and the victim’s views captured in the victim’s impact statement reports it is her recommendation that Gichuki be jailed.
“The offender has absolved himself from any responsibility in the matter herein. In as much as his family is routing for a non-custodial sentence for him, the offender did not express his willingness and commitment to be compliant to the provisions of either the probation community service order should he be given one,” Ms Eperenje said in her report.
But Mr Omari said Ms Eperenje’s report did not give reasons why Gichuki is not eligible for a non-custodial sentence and pleaded with Mr Kutto to ignore the report and follow the sentencing guidelines set up by the judiciary.
Mr Omari said the report cannot take away the discretion of a magistrate in sentencing offenders.
He said the incident that led to the death of the three deceased persons was a momentary lapse or a misjudgment because the court was satisfied that the offender was not driving under the influence of alcohol at the time of the accident adding that Gichuki has a driving license for 14 years and has never caused another accident.
“Had he been found to have been drunk, the custodial sentence would have been appropriate,” stated Mr Omari. “It was not a criminal attempt. He did not wake up to drive the car to kill anybody. He should be allowed a punishment provided by the law and the court has the jurisdiction of imposing a fine.”
Mr Omari said the court should be guided by the principle of decongesting the prisons.
Gichuki killed three people including activist Gladwell Otieno’s son, Silvano Mandla Otieno and his friends Brian Mwaura and Nsanya Otis Kapya.
Liz Mwaura (left) mother of Brian Waweru and and Gladwell Otieno (Right) Silvano Otieno’s mother with other relatives at the scene where the three friends perished in a road accident on April 15, 2012.
Their friend Tijan Kisilu was seriously injured and he told the court in his victim impact statement that he wants Mr Gichuki to be jailed for 12 years.
“The tragedy left me in pain both physically, mentally and emotionally. I had already enrolled to study engineering at the University of Nottingham and I was preparing to leave but after the accident all the plans fell apart. I changed my careers and specializations I never intended to work in,” his statement filed in court read in part.
“I am now classified as a person with permanent disability from injuries I suffered in the accident. I still have a few more surgeries to undergo on my right leg and my jaw. My jaw requires an implant surgery to place five teeth on my lower jaw line.”
The families of the three deceased friends rooted for the maximum sentence for Mr Gichuki in their victim impact statements.
Mr Otieno’s mother Gladwell in a similar report said that her son’s untimely death caused the family untold pain and anguish that has remained permanent every day.
She said the protraction of the case in court caused her and the family anxiety and affected the family psychologically and financially.
“As his parents have been devastated by this loss in all the 11 years he has been gone. We never imagined he would go before us,” her report states in part.
“The accused (Mr Gichuki) disrupted my family forever. We can never celebrate birthdays without tears of pain. Christmas is even worse being the time that we all met and shared as a family. We have missed Silvano for 10 Christmas holidays now and while we cannot bring him back, the loss of him is an aggravating factor for the court to weigh in the sentencing.” BY DAILY NATION
