[2022] KEHC 2724 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAPSABET

HCCR NO. 16 OF 2018

MAUREEN CHEBET ARUSEI..........................................ACCUSED

-VERSUS-

REPUBLIC

Coram: Hon. Justice R. Nyakundi

MS Oduori for the accused

Mr Kagunza for the accused

SENTENCE

1. The facts of this case that on 17th February, 2108 the accused caused the death of Elias Kipchirchir Yego by strangulation.

2. The accused was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code but subsequently, the Accused entered into a plea bargain agreement dated 2nd February, 2020. The plea bargain agreement recommended that the accused person be charged with the offence of manslaughter (contrary to section 202 as read with section 205 of the Penal Code) with a sentence of Ten (10) years.

3. The Accused person was cohabiting with the deceased person and often times, the two would be entangled in heated arguments that would attract the attention of their neighbours. This was true of the fateful night when the deceased passed on. The Accused person is a mother of Four (4) children One (1) being a child of the deceased.

4. This Court has considered the facts of the case, the admission of guilt on the part of the accused person following the entry of the plea bargain, the mitigation advanced on behalf of the accused person by her Advocate, the contents of the Victim Impact Statement Report and the Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary.

5. This Court takes judicial notice of the fact that the charge of manslaughter carries a mandatory sentence outlined in section 205 of the Penal Code as follows:

Punishment of manslaughter

Any person who commits the felony of manslaughter is liable to imprisonment for life.

6. This Court may depart from the aforementioned mandatory sentence. The Supreme Court in FRANCIS KARIOKO MURUATETU & ANOTHER V REPUBLIC [2017] eKLR the Court made the following observation:

“…We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.”

7. This Court finds that the Accused person must be made to take full responsibility for her actions. The Accused person must learn how to tame her emotions to avoid inflicting harm on others.

8. In LEONARD OWINO OPONDO V REPUBLIC [2018] eKLRthe Court upheld the trial Court’s decision on appeal making the following observation:

“… a sentence of 20 years imprisonment is neither harsh nor excessive. It is lawful and lenient. I find and hold that the trial magistrate correctly and lawfully exercised her discretion in sentencing the appellant to serve 20 years imprisonment for manslaughter, having taken into account all the circumstances of the case.”

9. Upon the Accused persons admission of guilt, this Court hereby sentences the Accused person to serve a prison term of Fifteen (15) years.

10. From the Court record, I note that the Accused person has been in custody from 8th March, 2018 to date. Approximately Three (3) years and Ten (10) months since the start of the trial herein.

11. This Court is required to factor in the aforementioned time in its sentence by dint of the provisions of section 333(2) of the Criminal Procedure Code which provide as follows:

“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody”

12. Clauses 7. 10 and 7. 11 of The Judiciary Sentencing Policy Guideline provides as follows:

“7. 10 The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.

7. 11 In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial”

13. In my judgment because of the provisions of Section 333(2) of the Criminal Procedure Code I will in that context give credit for the period of three years and ten months spent in pre-trial custody. It cannot be overemphasized that the accused person is entitled to be accorded a benefit of the least severe sentence prescribed by law by virtual of this provisions. It is however beyond dispute that the offence in question denotes aggravating factors which outweigh any mitigation or personal circumstances of the accused person. For these reasons I sentence the accused to Fourteen (14) years imprisonment. It is so ordered.

DATED, SIGNED AND DELIVERED AT KAPSABET THIS 3rd DAY OF FEBRUARY 2022.

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R. NYAKUNDI

JUDGE

In the presence of

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2……………………..…..