[2023] KEHC 23954 (KLR)

Republic v Akula (Criminal Case 17 of 2018) [2023] KEHC 23954 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23954 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 17 of 2018

RB Ngetich, J

October 19, 2023

Between

Republic

Prosecution

and

Jennifer Akula

Accused

Ruling

1. The accused Jennifer Akula had been charged with the offence of murder contrary to section 203 and 204 of the Penal Code. The particulars of the charge being that the accused on the 5th day of October, 2018 at Kampi Turkana village, Perkerra Sub-location, Baringo South Sub- County within Baringo County the accused murdered Stephen Eregae Ewoi.

2. The charge and its full particulars were read over and explained to the accused who denied the charge and the matter was set down for full hearing. Three witnesses testified in support of the prosecution’s case before hon. Justice W. Korir, however when the matter came up for furthering hearing before me on the 24th May,2023, the accused informed the court that the father to the deceased had agreed to forgive her. The deceased’s father one Jeremiah Ingolan Kapkoni who was present in court confirmed to the court that he had forgiven the accused.

3. On May 24, 2023 the defence counsel Mr. Kipkulei later informed the court that he had spoken to the accused together with the father of the deceased who informed him that they have forgiven the accused since she is relative, is an orphan and the deceased’s father was taking care of her two children. Plea agreement was executed on the July 12, 2023 reducing the charge to manslaughter.

4. On the said 12th of July, 2023, the charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code and its full particulars were read over and explained to the accused who pleaded guilty and was convicted on her own plea of guilty.

Brief Facts of The Offence 5. The brief facts are that the accused who is a resident of Kampi Samaki village where she is engaged in the business of selling alcohol. On the 5th day of October, 2018, she was at home when one Lilian Lobenyo alias Ekimat arrived with a collection of Kes 2,800 which was contributions from women self-help group and handed over the same to the accused to keep. Lilian then went back to her home after handing over the money.1. A motor cycle rider one Lewis Edoket Ngitieng arrived at the accused’s home at about 18:45 hours for an alcoholic drinks customer and the deceased herein Stephen Eregae Ewoi known to be mentally unstable arrived while carrying half packet of maize flour, two eggs and a small packet of Royco.

7. Shortly thereafter accused alleged that the deceased had taken her money Kes 2800 and a quarrel between the two ensued. The deceased started to walk away which made accused angry. Accused jumped and grabbed the packet of maize flour from the deceased’s hand and warned him with a beating if tried to go away with the money.

8. Suddenly the accused rushed to her residence and thereafter emerged while armed with a kitchen knife and a panga and started chasing the deceased vowing to beat him up. customers who were present at the accused’s home shouted at the deceased to run away or be killed by the accused person. The accused chased and caught up with the deceased and stabbed him on the neck. The deceased raised alarm and ran away into a video show room within the said village.

9. Shortly after reaching the video room, the deceased fell down on the floor bleeding profusely from the neck stab wound. The deceased’s father who coincidently was in the video room rushed to where the deceased was and tried to administer first aid on him. The deceased who was able to talk told his father it is the accused who stabbed him with a knife and thereafter became unconscious.

10. Lewis was called to the scene by the deceased’s father to assist in rushing the deceased to Marigat Sub- County Hospital. The deceased was later transferred to Eldoret Referral Hospital through Kabarnet County Hospital where he succumbed to injuries on October 10, 2018.

11. On the 5th day of October,2018 at about 2000hrs, the accused presented herself at Marigat police station and reported that he had stabbed the deceased early at the village using her kitchen knife on the neck after accused disturbed her at her home. on the 6th day of October, 2018, she led police in search of murder weapon (kitchen Knife) and bloodstained clothes. The knife was not recovered. The scene was processed and the accused’s blood-stained clothes kept as exhibits. The accused was placed in custody and charged with assault. The deceased died on the October 10, 2018 and the accused was charged with offence of murder.

12. Postmortem on the body of the deceased was conducted at Eldoret Referral Hospital by Dr. Malyanya on the October 19, 2018. The doctor formed opinion that cause of death severe pneumonia/ adult respiratory distress syndrome due to stab wound.

13. The charge was reduced from murder to manslaughter following plea bargain agreement. The accused pleaded guilty to offence of manslaughter and she was convicted on her own plea of guilty.

Pre-sentence Report 14. The court directed that a pre-sentence report be filed and the same was filed on the 18th day of September, 2023. From the report, the accused admits the offence as charged. She says that she committed the offence out of anger but has already reconciled with the victim’ s family. She prays for non-custodial sentence to enable her attend to her children since she is currently a single parent.

15. The accused’s family prayed for the accused to be granted community rehabilitation so that she can continue taking care of her five children who are still very young and school going and that as a family, they had already done reconciliation process and the victim’s family accepted to forgive the accused.

16. The deceased’s family noted that the accused’s family together with the victim’s family had already done three reconciliation meetings and they made some positive agreements. They added that the accused’s siblings are of low economic power and taking care of the accused’s children will be difficult to them; they do not therefore oppose the accused being granted community rehabilitation.

17. The local administration noted that the accused is well known to her and she has been of good character and she might have done the offence out of anger. The local administration noted that she is aware of the reconciliation meeting that had already taken place between the two families and do not oppose the accused being given community rehabilitation so that she can continue with her parental responsibility.

18. The probation officer recommends that the accused be granted 2 years’ probation sentence going by the positive sentiments from the deceased’s family and the fact that reconciliation has already taken place. That the presence of reconciliation leads to harmonious co-existence between the two families in the near future.

Mitigation 19. The defence counsel Mr. Kipkulei mitigated on behalf of the accused and submitted that the accused is a single lady aged 27 years and a mother of 5 children aged between one year and 10 years and she is an orphan; her children have been left in the mercies of well- wishers and urged the court to consider the best interest of the children. He submitted that the accused regrets having committed the offence, is remorseful, has apologized to the deceased’s family who have forgiven and are ready to accept her back home. Counsel further urged this court to consider the period of seven (7) months the accused has been in remand after arrest.

20. Ms Ratemo state counsel submitted that she is aware that the deceased’s family represented by the father who was in court have reconciled with the accused. She sentencing to court’s discretion.

Determination 21. Under section 205 of the Penal Code a person convicted of Manslaughter is liable to imprisonment for life. However, the court has discretion to impose a lesser sentence depending on circumstances of each case.

22. The accused herein, clearly was not able to manage her anger and acted in an irrational manner in the circumstances. In my view she requires rehabilitation to assist her mange anger and learn to resolve issues amicably. I take note of the interest of the children and the fact that the family of the deceased have forgiven her. I take note of the fact that the convict went to arm herself on suspecting the deceased and went arm herself with murder weapon. From evidence adduced there was minimum provocation on part of the deceased and in the interest of the children, I will impose lenient custodial sentence.

23. Under section 333 (2) of the Criminal Procedure Code, the convict is entitled to have period served in remand reduced from sentence imposed.

24. Final Orders1. Accused to serve 3 years imprisonment.2. Period served in remand to be reduced from sentence.3. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNETTHIS 19TH DAY OF OCTOBER 2023. .............................................RACHEL NGETICHJUDGEIn the presence ofMr. Milliong’ar - Court Assistant.Mr. Kipkulei for accused.Accused present.Ms Ratemo for State.