https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12272

Director of Public Prosecutions v Ndunge (Criminal Case E012 of 2025) [2026] KEHC 12272 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12272 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case E012 of 2025 NIO Adagi, J July 30, 2026 Between REPUBLIC Prosecution and Josephine Kasivu Ndunge Accused Judgment 1.The accused Josphine Kasivu Ndunge was initially charged with the offence of murder Contrary to section 203 as read with section 204 of the Penal Code and by a plea bargain agreement entered into between the accused and the prosecution and accepted and recorded in Court on 28th day of July 2026. The said charges were reduced to manslaughter contrary to section 202 as read with section 205 of the Penal code. The particulars of which were that on the 4th day of February 2025 at Kitie village, Mwala Location, Mwala Sub-County within Machakos County unlawfully caused the death of AMK . 2.She pleaded guilty to the said charge of manslaughter, the facts of which were that on 4th February 2025, at around 1800hrs when the deceased AMK a juvenile aged 6 years was with her mother the accused Josephine Kasivu Ndunda at the accused’s mother (deceased’s grandmother) house. The deceased went to sleep and she was escorted by her mother the accused having spent the whole day at school. The accused went to wake up the deceased but she did not wake up and the accused went outside for a little while. Later the accused went back to wake up the deceased but she failed to wake up and the accused became angry with the deceased and strangled her using her hands whereby the deceased died instantly. The accused rushed to her mother at her shop and the accused’s mother in turn called her son and informed him that the accused had told her that the deceased had consumed poison (pesticide) and she was lying in bed. The accused’s mother and her son (accused’s brother) immediately rushed home and found the deceased lying on the bed and the accused’s mother tried to give first aid by giving milk but unfortunately the deceased did not swallow it. The accused’s mother then instructed her son to rush the deceased to look for a boda boda and rush the deceased to hospital. The deceased was rushed to Mwala Level 4 hospital and upon examination, they were informed that the deceased was already dead and they issued a doctor’s note and they were to report the matter at Mwala police station. The body was later moved to Machakos Funeral Home. Investigations began into the matter. 3.A post mortem was conducted on 12th February 2025 and as a result of the examination, the doctor formed the opinion that the cause of death was asphyxia secondary to strangulation. Following this revelation the police officers summoned the accused, the accused’s mother and accused’s brother and interrogated them as to the cause of the death of the deceased. The deceased recorded a confession and informed the police that she strangled the deceased and she had not in deed taken poison. 4.Subsequently the accused was charged with the offence of murder which has now been substituted with manslaughter through plea bargain. 5.In mitigation, the accused through his Advocate Mr. Mutava submitted that the accused initiated the plea bargain with her family. Since her arrest and detention, she has learnt valuable lessons and is well behaved. Her family and clan are ready to receive her back and integrate her back to the society. The Aiini Clan to which the accused belong were involved in plea bargain and based on Kamba culture, the Aiini Clan’s has supreme authority and its decision is binding on the parties. The court was referred to the Affidavits and a letter by the clan requesting the court to consider their contents. It was submitted that guided by the Chief Justice of Kenya’s directives on Alternative Disputes Resolution (ADR) and Alternative Justice Systems (AJS) this court was invited to be persuaded by the resolution of the matter herein by the clan. 6.Ms. Agatha Abang, the prosecuting counsel, stated that the state appreciated the accused for agreeing to undertake the plea bargain negotiations. She had a chance to consult with the victim’s grandmother Milka Ndunge who is the mother to the accused. She confirmed that the clan had a meeting and discussed the issue. Although they were touched with the death, they are ready to integrate the accused into the society. She stated that the Aiini Clan members visited their offices and she was able to prepare a Victim Impact Assessment Report discussions with the family of the victim. The mother of the victim who is also the mother to the accused is aged and unwell and has indicated their sentiments in the victim impact assessment report dated 14th May 2026. This being a family matter, the prosecution had proposed a non-custodial sentence. She appreciated that the Alternative Justice System got the Aiini Clan into resolving the matter herein and the process was successful. 7.This court has considered the charge as plea bargained for, from murder to manslaughter and the circumstances under which the offence was committed, and the age of the accused person, and the Judiciary Policy Sentencing guidelines as well as the sentencing guidelines espoused in the Francis Muruatetu & Another v R [2017] eKLR case. In this case, as clarified by the supreme Court on 6/7/2021, the court is sentencing should consider the following factors which I shall consider in this case:a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social re-adaptation of the offender;j.Any other factor that the Court considers relevant. 8.I observe that the accused person was charged with murder but has plea bargained for manslaughter and pleaded guilty to the lesser charge of manslaughter which carries up to life imprisonment upon conviction. I also observe that the accused is aged 27 years old and a first offender. She is remorseful for what she did to the deceased and her family and is agreeable to being sentenced to non-custodial sentence of five (5) years as recommended by the prosecution. 9.The parties having reached a plea bargain agreement, which this court has had the opportunity to peruse through and has established that the accused strangled her own child for failing to wake up when the accused tried to wake her. 10.I have looked at the post-mortem report filed by the prosecution as which confirmed that the cause of the deceased’s death was asphyxia secondary to strangulation 11.The Sentencing Policy Guidelines 2023 outlines the objectives of sentencing at paragraph 1.3.1 as follows: -Sentences are imposed to meet the set out sentencing objectives. There will be instances in which the objectives may conflict with each other, in so far as possible, sentences imposed should be geared towards meeting the objectives in totality. 12.The sentencing objectives in Kenya have been captured in the sentencing guidelines 2023 to be the following: -a.Retribution: to punish the offender for his/her criminal conduct in a just manner.b.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.c.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.d.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.e.Community protection: to protect the community by incapacitating the offender.f.Denunciation: to communicate the community’s condemnation of the criminal conduct.g.Reconciliation: To mend the relationship between the offender, the victim and the community.h.Reintegration: To facilitate the re-entry of the offender into the society. 13.I have considered the sentencing objectives in totality, the nature of the offence, its circumstances, the plea bargain agreement, the victim impact assessment report, mitigation, the period the accused has been in remand , the age of the accused and the fact that the accused saved judicial time by pleading guilty upon entering into the plea bargain agreement, the fact that she is remorseful and the fact that her family which is also the family of deceased and the Aiini Clan have forgiven her and are ready to welcome her back to the society and all the other necessary factors. The accused also acknowledges her mistake and regrets that a life was lost. Disposition 14.Therefore, considering all the above factors and circumstances, this court makes the following orders:(i)The accused is convicted and sentenced on her own plea of guilty for the offence of Manslaughter contrary to section 202 as read with section 205 of the Penal code;(ii)I exercise discretion and sentence the accused to Community Service Order for a period of Five (5) years. The Service Order shall be supervised through the authorized Probation Office within Machakos County. 9.It is so ordered. This file is closed. SENTENCE DATED, SIGNED & DELIVERED AT MACHAKOS THIS 30TH JULY 2026.NOEL I. ADAGIJUDGEIn the presence of :