[2014] KEHC 1133 (KLR)
The court found that the accused, having been convicted of manslaughter on grounds of provocation, had already spent over five years and six months in custody. Given his remorse, family circumstances, and the absence of risk of community retaliation, the court determined that the time served was sufficient...
Source-derived case information.
- Citation
- [2014] KEHC 1133 (KLR)
- Parties
- Applicant: Republic; Defendant: Charles Omwaka Ndunde
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 44 of 2009
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Accused sentenced to time served and placed on probation.
- Judges
- MJA Emukule
- Legal Topics
- Manslaughter, Sentencing, Provocation, Probation, Penal Code, Remorse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Charles Omwaka Ndunde
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should be sentenced to further imprisonment or probation after conviction for manslaughter.
- 2 Whether the period already spent in custody is sufficient punishment for the offence committed.
Ratio Decidendi
The court found that the accused, having been convicted of manslaughter on grounds of provocation, had already spent over five years and six months in custody. Given his remorse, family circumstances, and the absence of risk of community retaliation, the court determined that the time served was sufficient punishment. The court exercised its discretion to impose a non-custodial sentence, ordering the accused to serve three years on probation under supervision, with a warning that any offence during this period would result in a three-year jail term. This approach balanced the interests of justice, rehabilitation, and public safety.
Court Disposition
Accused sentenced to time served and placed on probation.
Orders
- The accused is released from custody to serve three years probation under the Probation Officer Nakuru.
- If the accused commits any offence during the probation period, he shall be liable to serve a jail term of three years.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL CASE NO. 44 OF 2009
REPUBLIC..........................................................................................PROSECUTOR
VERSUS
CHARLES OMWAKA NDUNDE.................................................................ACCUSED
SENTENCE
1. Charles Omwaka Ndunde (the accused) was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63, Laws of Kenya). On the evidence adduced by the prosecution, he was found guilty of the lesser offence of manslaughter and duly convicted. The judgment is dated 31st October 2014.
2. Thereafter the court called for a Probation Report. A Probation Report was therefore filed on 1st December 2014, and has been read and considered by both the Prosecution and Defence Counsel. The court has also considered the Report.
3. The accused was, essentially on the grounds of provocation, convicted of the lesser offence of manslaughter contrary to Section 202 of the Penal Code, as read with Section 205 thereof. The accused pleads for leniency. The Probation Report states that the accused dropped out of school after only reaching Standard V. He is now 38 years of age. He started eking life early in Kakamega his home town, moved to Nakuru, did casual work until he graduated into a newspaper vendor and climbed the informal sector ladder, and became a boda boda, motor bike operator. He is a father of three children, and his wife is also a casual laborer, specializing in laundry work.
4. The punishment upon conviction for the offence of manslaughter is life imprisonment. The accused is remorseful. He has a young family. The family of the deceased has moved away from the area, and there is likely to be no danger of revenge attack, and therefore a spiral of violence. The accused has been in detention since his arrest 2. 05. 2009, that is now a period of over 5 years and six months.
5. In light of the circumstances of this case, I think, that is sufficient time spent in prison custody. In addition thereto, I would place the accused to three (3) years probation, to serve under the Probation Officer Nakuru with a warning that should he commit any offence during that period he shall be liable to serve jail term for three years.
6. Subject as aforesaid, he be released to serve the probation time outside jail.
7. It is so ordered.
Dated, signed and delivered at Nakuru this 5th day of December, 2014
M. J. ANYARA EMUKULE
JUDGE