[2016] KEHC 5473 (KLR)
The court found that, although both accused were convicted of manslaughter, their personal circumstances and antecedents warranted different sentences. The 1st accused had a previous conviction, was untruthful during the probation interview, and was not supported by his community, justifying a custodial sentence....
Source-derived case information.
- Citation
- [2016] KEHC 5473 (KLR)
- Parties
- Applicant: Republic; Defendant: David Mwangi Mungai; Defendant: Beatrice Nyagaki Mungai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 77 of 2013
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- 1st accused sentenced to 8 years imprisonment (5 years 3 months to serve after deducting time in custody); 2nd accused sentenced to 2 years suspended sentence with 1 year probation supervision.
- Legal Topics
- Manslaughter, Sentencing Principles, Mitigation, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
David Mwangi Mungai
Defendant
Beatrice Nyagaki Mungai
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused persons should receive different sentences despite being convicted of the same offence.
- 2 What weight should be given to the personal circumstances and antecedents of each accused in sentencing.
- 3 Whether time spent in custody should be considered in determining the sentence.
Ratio Decidendi
The court found that, although both accused were convicted of manslaughter, their personal circumstances and antecedents warranted different sentences. The 1st accused had a previous conviction, was untruthful during the probation interview, and was not supported by his community, justifying a custodial sentence. The 2nd accused was a first offender, elderly, had strong community support, and her probation report was favorable, justifying a non-custodial, suspended sentence. The court considered the time already spent in custody by both accused and ordered that the 1st accused serve the remainder of his sentence, while the 2nd accused serve a suspended sentence under probation supervision.
Court Disposition
1st accused sentenced to 8 years imprisonment (5 years 3 months to serve after deducting time in custody); 2nd accused sentenced to 2 years suspended sentence with 1 year probation supervision.
Orders
- 1st accused, David Mwangi Mungai, to serve 8 years imprisonment, less time already served (to serve 5 years 3 months from date of sentence).
- 2nd accused, Beatrice Nyagaki Mungai, to serve a suspended sentence of 2 years, not to commit any offence during this period, failing which she will serve the custodial sentence.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 77 OF 2013
REPUBLIC………………………………………………PROSECUTOR
VERSUS
DAVID MWANGI MUNGAI………………………..…..…1ST ACCUSED
BEATRICE NYAGAKI MUNGAI……………....………...2ND ACCUSED
SENTENCE
David Mwangi Mungai, the 1st accused and Beatrice Nyagaki Mungai, the 2nd accused, were charged jointly with murder contrary to section 203 as read with section 204 of the Penal Code. The murder was committed on 20th June 2013 at Ndenderu Village in Kiambu County. The victim is one Patrick Muiga Gathimba.The two were tried and in a judgement delivered on 9th March 2016 they were acquitted of murder but found guilty of manslaughter. In mitigation, Mr. Wamwayi counsel for the 1st accused told the court that the 1st accused was remorseful of what happened to the deceased; that the 1st accused is a young man aged 29 years and has a family of a wife and two children and that he has been in custody since 2013. Mr. Wamwayi asked the court to exercise leniency in sentencing the 1st accused.
Mr. Jumba for the 2nd accused mitigated that the 2nd accused is remorseful; that she is elderly and has children and grandchildren who rely on her; that for the 3 years she has been in custody the children and grandchildren have been deprived of her care and guidance. Mr. Jumba asked the court to consider the time spent in custody during which time the 2nd accused has had time to reflect on the offence and asks for leniency in sentencing.
I commissioned a report from Probation which was filed on 4th April 2016. I have read the report in respect of each accused person. I have noted that the report in respect of the second accused is favourable in that the relatives had good things to say about her and are ready to accommodate her in the community. However, the report in respect of the first accused reveals that he appeared not honest during the interview and his siblings and some members of the community from his village held the view that the local community were at peace during the time the 1st accused has been in custody. The report also reveals that the 1st accused is not a first offender as stated by the prosecution. He has served term for rape. This fact has been admitted by the 1st accused and his counsel although it was admitted that he had served three years for attempted rape and not rape.
The law allows the court to impose different sentences in a case where two or more people are charged in the same offence. The court must however give reasons for doing so. In Walter Marando v. Republic [1980] eKLR the Court of Appeal stated as follows on that issue:
“When two or more people are convicted of the same offence, it is wrong in principle to impose different sentences except for good reason.”
One may argue that this is discriminatory when the law of this land is clear that it is wrong to discriminate against people on any basis. In R v. Ball [1951] 35 Cr App Rep 164, 166which was cited with approval by the Court of Appeal in the Walter Marando case above, Hilbery J stated as follows:
“The differentiation in treatment is justified if the Court, in considering the public interest, has regard to the differences in characters and antecedents of the two convicted men and discriminates between them because of these differences.”
In applying the same principle here, I have considered the mitigation by both accused persons through their respective counsels; I have also considered that the 2nd accused is a first offender, is elderly and the probation report said good things about her and that the community and relatives are willing to accommodate her in their midst. On the other hand, the 1st accused has a previous conviction, did not disclose this to the probation officer and it took relatives and members of the community from the neighbourhood of his village to disclose these facts; that he was untruthful and that his siblings, relatives and community said unsympathetic things about him. I am persuaded that I have good reasons to impose different sentences in respect of the two accused persons. In that regard, I hereby sentence the 1st accused, David Mwangi Mungai, to eight years jail term. Given that he has stayed in custody for 2 years and 9 months, I order that he serves the remainder of the 8 years. For the avoidance of doubt, the 1st accused shall serve 5 years and 3 months in jail.
The 2nd accused shall serve a suspended sentence of 2 years. Within that period the 2nd accused shall not commit any offence failing which she will be liable for arrest and to serve the custodial sentence. In addition, the 2nd accused shall be placed under the supervision of a probation officer for 1 year. She may benefit from the counseling and guidance. Orders shall issue accordingly.
Dated, signed and delivered this 19th day of April 2016.
S. N. MUTUKU
JUDGE
In the presence of:
Ms Esther Macharia, for the prosecution
Mr. Wamwayi for the 1st accused
Mr. Jumba for the 2nd accused
Mr. David Mwangi Mungai, 1st accused
Ms Beatrice Nyagaki Mungai, 2nd accused
Mr. Daniel Ngumbi, court clerk