[2022] KEHC 14226 (KLR)

Republic v EKN (Criminal Case E024 of 2022) [2022] KEHC 14226 (KLR) (19 October 2022) (Sentence)

Neutral citation: [2022] KEHC 14226 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E024 of 2022

TM Matheka, J

October 19, 2022

Between

Republic

Prosecution

and

EKN

Accused

Sentence

1. EKN is charged with Murder Contrary to Section 203 as read with 204 of the Penal Code. It was alleged that on March 31, 2022 at [Partculars withheld] Village Bararget Location within Kuresoi South Sub County, Nakuru County he murdered Edwin Kipkoech Komen.

2. When plea was taken on April 20, 2022 the accused pleaded not guilty to the charge. The prosecution opposed bond on the ground that two (2) of the witnesses were minor daughters of the accused person, and there was fear he would interfere with their evidence on his part, the accused was concerned that his daughter who had passed class eight (8) and was bound to join form 1 would fail to do so while he was in custody. Counsel for the accused Mr. Opondo urged the court to direct that the state machinery of Witness Protection be applied.

3. On his part Mr. Kihara for the state opposed this position on the ground that the two (2) girls’ young children who need to remain in custody of their mother, in their best interests, and that the state would give the case priority, whereby the testimony of the two (2) minors would be taken at the earliest, and then the accused could be released on bond, as there was no need to separate the two (2) children from the family and into witness protection.

4. I was in agreement with the prosecution with respect to the child witness, but directed that the Probation and After Care Services avail a pre-bail report.

5. When the matter came for mention on April 27, 2022 for the Pre Bail Report, the defence told the court that they wanted to initiate Plea Bargain agreement. The defence had an alternative living place for the accused if released on bond and were ready to abide by orders, to stay away from his family, and the two (2) child witnesses. Conditional bond was granted, with exclusion orders.

6. On June 28, 2022, the court was told that a plea agreement had been entered into between the defence and the prosecution. The accused person had agreed to plead to a reduced charge pursuant to Section 137 A (1) (a). The Plea Agreement was recorded pursuant to Section 137 F after I established that the accused person understood the import of getting into a plea agreement.

7. The charge of Manslaughter Contrary to Section 202 as read with 205 of the Penal Code was read to and explained to the accused. He pleaded guilty to it. The prosecution lay the factual basis of the plea agreement: That on March 31, 2022 the accused was seated outside the house taking tea with his two (2) minor daughters SC and JC. His wife was inside the house. He suspected there was something fishy going on. When he entered the house, he saw the deceased and his wife leaving the bedroom. He did not talk to them. He went back and sat with his daughter. The deceased unaware that he had been seen leaving the bedroom went round through the back and came to the compound through the main gate. When he greeted the accused and his daughters, the accused asked him whether death had called him, picked a stick, threw it at the deceased. He then stood up took a panga and cut him with a panga. The deceased fell down and never got up.

8. Police were called. Accused was arrested, body was taken to mortuary. The post mortem revealed cause of death was severe head injury caused by deep cut wounds.

9. The accused pleaded guilty to the facts and was convicted on his own plea. The state proposed 7 years’ imprisonment. The defence proposed 3 years’ non-custodial sentence. That the accused acted out of provocation. That he had cooperated with the police. He was the sole bread winner for his children, father, provider and regretted his actions.

10. The pre-sentence report was filed on October 11, 2022 by Probation and After Care Services (Probation and After Care Services). The report states that the victim had an illicit affair with the wife of the accused, and that there was a child born out of that affair but these issues had been settled, except that the deceased continued visiting the accused’s home, that on the material date he saw the deceased emerge ½ naked from the bedroom and that he found out, “he was making love to his wife”, then cut him with a panga.

11. The report further states that the accused acted out of anger after “having found the victim in his homestead despite being warned against visiting his house.”

12. Probation and After Care Services recommends a non-custodial sentence.

13. The only issue here is what sentence is appropriate. I have set out the record, as there is no evidence on record except what the prosecution told the court. Section 205 provides that a person found guilty of Manslaughter is liable to imprisonment for life.

14. The term “life” is not defiled in thePenal Code, hence the plain reading is that a person is to remain in prison for the rest of his natural life.

15. Do the circumstances of this case call for that sentence?

16. In arriving at the sentence, the court is considered the weight of the aggravating and mitigating circumstances, and to give consideration to the fact that the accused pleaded guilty to the charge and saved court time. The accused’s “defence” is that he was provoked by the conduct of the deceased with his wife. However, he did not react on the spot, when he saw the two of them leaving the bedroom, he suspected them, but in the same facts, the deceased appeared from the main gate and greeted him.

17. The report from Probation and After Care Services adds details that are not among the facts given by the prosecution and heeded to by the accused.

18. What emerges is that the deceased was unarmed. There was no fight. The accused person picked a stick and hit him. He proceeded to get a panga and to cut the deceased, causing his death. The fact that there was no fight, there was no fight back from the deceased is clear indication that the accused person used excessive force, in the circumstances. He also did this right in front of his two (2) children in grade 6. 1.Looking at the other authorities on sentencing for Manslaughter, this is not a case suitable for non-custodial sentence. 8 years appears to be the sentence for similar circumstances. The recommendation by ODPP of 7 years is therefore reasonable.2. The accused person needs time to deal with his anger, when relationships go sour, people must be encouraged to know that violence is not the solution. The accused did not have to kill an unarmed man.3. As human being we have to learn to deal with break ups, where a relationship is not working we have to find better ways to deal with those, killing the so called intruder is not the answer, there is no property in a wife or husband or girl friend or boyfriend. Killing them because they are having an affair, or killing the person sleeping with them should not be considered an acceptable excuse.4. In the circumstances of this case it is my view that a non-custodial sentence would not be suitable considering the manner in which the offence was committed. The accused person needs time come to terms with the fact that he took the life of a person who did not even fight back in the presence of his minor children.5. The accused person gets credit for entering into a plea agreement at the earliest possible opportunity. That signals some remorse, and has saved judicial time.6. I have taken into consideration the period the accused has been in custody.7. Having weighed all the circumstances, he is sentenced to serve six (6) years’ imprisonment.8. Right of Appeal 14 days.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 19TH DAY OF OCTOBER, 2022. Mumbua T. MathekaJudgeIn the presence of:Court Assistant: JeniferFor State: Ms. MurungaFor accused: N/AAccused: present