[2017] KEHC 621 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL CASE NO. 46 OF 2016

REPUBLIC...................................PROSECUTOR

VERSUS

ANN NKATHA MUTUMA.................ACCUSED

SENTENCE

1. Ann Nkatha Mutuma (the “Accused Person”) was originally charged with murder of Stevson Museti contrary to section 203 as read together with section 204 of the Penal Code. She was first arraigned at the High Court in Milimani on 01/12/2015. She pleaded not guilty to the charge. The case was later on transferred to this Court since the alleged murder happened in Kiambu County.

2. By a Plea Agreement dated 19/07/2017, the Accused Person pleaded guilty to the charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. After due caution, and after satisfying myself that the Plea Agreement was entered into knowingly and voluntarily, I recorded a conviction and called for pre-sentencing report and victim impact statements (if desired) and set the case for a sentencing hearing.

3. The agreed facts of the case lay out the circumstances and context in which the offence was committed. They are as follows:

The Accused disagreed with her husband, Stevson Moseti (the Deceased), and she moved from their rental house at Kahawa Sukari and rented a separate house just nearby. On the material day (18/11/2015), the Deceased called the Accused at around 8:30pm and demanded that they talk so that they could solve their disputes but the Accused requested that since it was late at night, they could talk the following day.

The Deceased refused the request to talk the following day and they agreed to solve their dispute on that same evening/night in the presence of one Stephen Sabei who was the Deceased’s cousin. The Deceased, who was drunk at the time, began forcefully knocking on the door. He broke the window and forced his way in. The Deceased then began beating the Accused severally and also picked up the Accused’s TV and hit it on the floor damaging it together with the DVD player. The Deceased had come with a knife and a hammer which he used to threaten the Accused by putting the knife in her stomach. The Deceased continued beating up the Accused and when the said Stephen Savei tried to intervene, the Deceased also threatened him with the hammer. During the scuffle, the Accused disarmed the Deceased, the knife fell [to the ground and] the Accused picked it up and stabbed the Deceased on the right side of the lower rib cage.

The Accused immediately ran outside shouting for help and other neighbours who had heard screams from the Accused’s house came to the scene. The Deceased came out of the house profusely bleeding and again grabbed the knife telling the Accused “I will kill you, you have poured my blood.” The Deceased was then taken to hospital and was declared dead on arrival. The Accused was then arrested and charged with the offence of murder.

4. The Court specifically invited the Victim’s family to file any Victim Impact Statements. However, Ms. Maari for the State informed the Court that the Victim’s family were not interested in filing any statements or addressing the Court. Ms. Maari confirmed to the Court that the Accused is a first offender.

5. For the Accused Person, Mr. Farrah addressed the Court and filed an affidavit by the Accused Person in support of mitigation. I also requested the Probation and After Care Services to file a Pre-Sentence Report. What emerges from these three sources is the following:

a. The Accused Person is a youthful twenty-three years old.

b. She is a mother of one – a four-year old boy.

c. The Accused Person is deeply remorseful for what happened and sincerely expressed the remorse in Court;

d. The Accused Person has sought forgiveness from the Deceased’s parents and depones that they have granted her the forgiveness since they understand the circumstances in which their son died.

e. The Accused Person was in a deeply troubled marriage. She sought to move away – but her husband was not ready to let go. On the fateful day when the incident happened, the Deceased went to the Accused Person’s house and was, by all accounts, quite violent.

f. It was the Deceased who was the aggressor – and violently so: he forced himself into the Accused Person’s house by breaking the window while armed with a knife and a hammer. He damaged the property of the Accused Person inside the house and held a knife to her stomach. In the circumstances, the Accused Person was reasonably fearful for her life. It was when the knife dropped to the ground that she got an opportunity to pick it up, stab the Deceased and flee for her dear life. These are not the acts of a gratuitously violent person. Indeed, the Accused Person fled at the earliest opportunity and called for help. She did not try to run away from justice but peaceably handed herself to the Police.

g. The Accused Person pleaded guilty to the offence of manslaughter and saved the Court judicial resources of going through a trial.

h. The Accused Person is a first offender.

i. The Accused Person has been in custody for more than two years.

j. While in custody, the Accused Person has taken a number of classes aimed at her self-improvement and restored her spiritual connectedness with God.

6. I have considered all the factors enumerated above as constituting mitigating circumstances. I have not found any aggravating factors. I have also considered that the Pre-sentence report has recommended a non-custodial sentence.

7. My considered conclusion is that this is an appropriate case for a non-custodial sentence. I have noted that the Prosecution is not opposed to a non-custodial sentence and the Probation Report recommends it. It is noteworthy that the Accused Person has a young child which will, I hope, create an upward pull for her to turn around her life. I find that no useful purpose whatsoever will be served by sending the Accused Person to prison. I, therefore, sentence the Accused Person to serve a Probation Sentence for a period of two years under the supervision and direction of the Probation Office, Kiambu County.

8. Orders accordingly.

Delivered at Kiambu this 5th Day of September, 2017.

……………………………………

JOEL NGUGI

JUDGE