[2022] KEHC 1333 (KLR)
The court found that the accused is a first offender, has a young family, has been in custody for about four years, pleaded guilty, and is remorseful. These are significant mitigating factors. The court rejected the prosecution's submission to ignore the pre-trial custody period, holding that section 333(2) of the...
Source-derived case information.
- Citation
- [2022] KEHC 1333 (KLR)
- Parties
- Applicant: Republic; Defendant: Boniface Ndolo Kerosio alias Bonny
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 31 of 2019
- Procedural Posture
- Criminal Case / Sentencing Judgment
- Outcome
- The 1st accused is sentenced to three years imprisonment, with the period spent in pre-trial custody taken into account.
- Legal Topics
- Manslaughter, Sentencing Principles, Mitigation, Pre Trial Custody, First Offender, Remorse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Boniface Ndolo Kerosio alias Bonny
Defendant
Procedural Posture
Criminal Case / Sentencing Judgment
Legal Issues
- 1 What is the appropriate sentence for the 1st accused convicted of manslaughter on his own plea of guilty.
- 2 Whether the period spent in pre-trial custody should be considered in sentencing as per section 333(2) of the Criminal Procedure Code.
- 3 Whether the mitigating factors outweigh the aggravating circumstances in determining the sentence.
Ratio Decidendi
The court found that the accused is a first offender, has a young family, has been in custody for about four years, pleaded guilty, and is remorseful. These are significant mitigating factors. The court rejected the prosecution's submission to ignore the pre-trial custody period, holding that section 333(2) of the Criminal Procedure Code mandates consideration of the entire remand period to avoid double jeopardy. The court also disregarded the prosecution's recommendation for a custodial sentence, emphasizing that such recommendations are outside the prosecutor's role. After weighing both mitigating and aggravating circumstances, including the impact on the deceased's family and the lack...
Court Disposition
The 1st accused is sentenced to three years imprisonment, with the period spent in pre-trial custody taken into account.
Orders
- The 1st accused is sentenced to three years imprisonment.
- The period the accused has been in pre-trial custody shall be taken into account in computing the sentence.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL CASE NO. 31 OF 2019
REPUBLIC………………………….……………………….PROSECUTOR
VERSUS
BONIFACE NDOLO KEROSIO ALIAS BONNY...….....….1ST ACCUSED
ERICK ONGUTI MANWA.….…………..………….…….….2ND ACCUSED
JUDGEMENT ON SENTENCE
The 1st accused was convicted of manslaughter on his own plea of guilty on 19/10/2021. Therefore, the issue before me is one of the appropriate sentence to be imposed upon him.
Counsel for the prosecution (Ms Ogweno) informed the court that the accused is a 1st offender. She also informed the court that the accused Has been in custody for two (2) years and not four years. She further informed the court that the 1st accused was not a victim of circumstances.
Furthermore, she informed the court that the family of the deceased lost their loved one. She also urged the court to impose a custodial sentence; which should run from the date this court will pronounce itself on sentence. She therefore urged the court to ignore the period that the accused was in pre-trial custody.
Mr Kangimu for the accused mitigated on behalf of the 1st accused. He urged the court to take into account the following matters.
He urged the court to take into account that his client wrongly joined to defend the lady who had been attacked. The accused has a young family with infants who solely depend upon him as the sole bread winner. He further informed the court the accused has been in remand since 2019, which translates to a period of about four years; which he submits is sufficient punishment.
Furthermore, counsel also urged the court to impose a non-custodial sentence. He also informed the court the accused is remorseful. The accused is a staunch Muslim and this will assist him in keeping himself from bad company. Accused is sorry for the pain inflicted upon the family of the deceased; who lost a pillar of their family.
I find that the 1st accused is a first offender. He is a young man with a family consisting of infants. I also find that he has been in custody for about four years. I have also taken into account that he has pleaded guilty; which has saved judicial time.
Furthermore, I find that he is remorseful and now he is a staunch Muslim which will assist to keep him away from bad company.
All of the foregoing are mitigating factors.
Based on the probation’s officers report I find the death of the deceased impacted his family adversely. They are bitter that the family of the accused have not to date apologized and have not compensated them.
I find that the call by the prosecutor to the court to impose a custodial sentence merits attention. It is not the function of the prosecutor to inform the court that a custodial sentence is called for. It is also not the function of the prosecutor to inform the court about her views. The prosecutor may only point out the circumstances of the offence and whether the accused is a first offender. This court (Sir James Wicks, C.J and Trevelyan, J) in Shiani v Republic [1972] E.A 557 pronounced itself as follows:
“The prosecutor told the magistrate that the offence was serious though whether he was referring to it generally or to the facts of the case, he did not make it clear. Either way, the comment should not have been made. It is not the function of a prosecutor, as this court has more than once said, to tell the court his views. He is required simply to put the facts before the court. The court must decide how it views the case.”
And it is for the foregoing reasons that I hereby ignore the submissions of the prosecutor that I should impose a custodial sentence.
Furthermore, I have also ignored the submission of the prosecution that I should ignore part of the pre-trial remand period in sentencing the accused. I have also ignored the prosecution submission that the court should only take into account that period from the time the court will pronounce itself on sentence. The prosecution urged the court to ignore the previous pre-trial remand period. According to section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya the court in mandatorily required to take into account the entire period the accused has been in remand. If part of that period was to be ignored, the result will be that the accused will be punished twice for the same offence; which is constitutionally impermissible. As it were this will offend the rule against double jeopardy.
After taking into account both the mitigating and aggravating circumstances including the entire period the accused has been in custody, I hereby sentence the accused to three years imprisonment.
Judgement signed, dated and delivered in open court at Nairobi through video conference this 21st day of March 2022.
J M BWONWONG’A
JUDGE
In the presence of-
Mr. Kinyua court assistant
Ms Ogweno for the Republic
Mr Kangima for the 1st accused/Respondent