[2015] KEHC 1861 (KLR)
The court found that the accused acted under extreme provocation and without intent to kill, as evidenced by the spontaneous reaction to finding his wife in an adulterous act. The plea bargain to manslaughter was appropriate given the facts. The court considered the accused's remorse, the forgiveness by the family...
Source-derived case information.
- Citation
- [2015] KEHC 1861 (KLR)
- Parties
- Applicant: Republic; Defendant: Barongo Kenyanya
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 45 of 2013
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted on plea of guilty to manslaughter; sentenced to one year non-custodial sentence under probation supervision.
- Judges
- WA Okwany
- Legal Topics
- Manslaughter, Plea Bargain, Provocation, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Barongo Kenyanya
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused was guilty of manslaughter as per the plea bargain agreement.
- 2 Whether the circumstances of provocation and lack of intent to kill warranted a non-custodial sentence.
- 3 What sentence was appropriate considering the period already spent in custody and the accused's family situation.
Ratio Decidendi
The court found that the accused acted under extreme provocation and without intent to kill, as evidenced by the spontaneous reaction to finding his wife in an adulterous act. The plea bargain to manslaughter was appropriate given the facts. The court considered the accused's remorse, the forgiveness by the family and community, the welfare of his young children, and the two years already spent in custody. These factors justified a non-custodial sentence. The court determined that a one-year non-custodial sentence under probation supervision was sufficient to serve the interests of justice and rehabilitation, rather than further incarceration.
Court Disposition
convicted on plea of guilty to manslaughter; sentenced to one year non-custodial sentence under probation supervision.
Orders
- The accused is sentenced to one (1) year non-custodial sentence under the supervision of the Probation Officer of his area.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO.45 OF 2013
REPUBLIC ……………………………………PROSECUTOR
VERSUS
BARONGO KENYANYA…………………….……ACCUSED
SENTENCE
The accused person herein BARONGO KENYANYA, was initially charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.
By a plea bargain agreement entered into on the 15th July 2015 between the accused person and the State, the said charge was reduced to Manslaughter contrary to Section 202as read withSection 205 of the Penal Code.
The particulars of the charge were that on 17th April 2013 at Bomanyara Location, in Gucha District within Kisii County in the Republic of Kenya unlawfully caused the death of MARGARET BARONGO.
The accused person pleaded guilty to the said charge and was consequently convicted on his own plea of guilty.
The facts leading to the commission of the offence pleaded to were that on 17th April 2013, the accused found his wife red-handed while engaging in sex with a man called BENSON on his matrimonial bed. The accused and the wife’s lover fought. The accused was armed with a jembe and the intruder a knife. The accused threw the jembe at the intruder who ducked and instead the jembe hit the deceased who was right behind her lover. The lover ran away stark naked leaving behind his clothes with the accused in hot pursuit. Upon returning home, the accused found his wife’s body lying lifeless on the floor.
A post mortem examination conducted on the body revealed the cause of death as cardio-pulmonary arrest secondary to severe head injury due to blunt trauma.
In mitigation, Mr. Bigogo, counsel for the accused submitted that the deceased death was accidental as the jembe was aimed at the intruder who had trespassed into the accused’s bedroom. Mr. Bigogo stated that the accused acted under extreme provocation. He stated that the accused was married with four children aged between 15 years and 3 years who have now been left without a parent in the absence of the accused. The accused pleaded for leniency and stated that he was remorseful for what had happened on the fateful day.
The Probation Officer, in his pre-sentence and victim impact report which was filed on 14th August 2015 observed that a non-custodial sentence would be suitable sentence for the accused in view of the fact that his family members and community had forgiven him and were willing to welcome him back home.
I have taken into account the disturbing chain of events that led to the death of the deceased. I note that the accused acted spontaneously out of provocation and anger and clearly he had no intentions of killing his own wife. I note that the over 2 years period that the accused has been in custody is adequate lesson to him to tame his anger. I further take note that the accused has young children to take care of.
Accordingly I sentence the accused person herein to one (1) year non-custodial sentence during which period he will be supervised by the Probation Officer of his area.
It is so ordered.
Signed, Datedand Delivered in open court this 27th day of October, 2015.
HON. W. A. OKWANY
JUDGE In the Presence of:
Mr. Majale for State
Mr. Bigogo for Accused
Omuga: court clerk