[2009] KEHC 3789 (KLR)
The court found that although the accused was a first offender and had pleaded guilty to manslaughter, the post-mortem evidence showed the deceased sustained several injuries, indicating the accused intended to cause harm. The court considered the accused's pregnancy, confirmed by medical report, as a significant...
Source-derived case information.
- Citation
- [2009] KEHC 3789 (KLR)
- Parties
- Applicant: Republic; Defendant: Florence Gathoni Ngugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7 of 2009
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- accused sentenced to three months imprisonment
- Judges
- A. Ong’injo
- Legal Topics
- Manslaughter, Mitigation of Sentence, Pregnancy in Sentencing, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Florence Gathoni Ngugi
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused's pregnancy should be considered as a mitigating factor in sentencing.
- 2 Whether the accused's actions constituted manslaughter under the Penal Code.
- 3 Whether the accused's plea of guilty and first offender status warrant leniency.
Ratio Decidendi
The court found that although the accused was a first offender and had pleaded guilty to manslaughter, the post-mortem evidence showed the deceased sustained several injuries, indicating the accused intended to cause harm. The court considered the accused's pregnancy, confirmed by medical report, as a significant mitigating factor but found it inappropriate for the accused to use her pregnancy solely to seek leniency. Balancing the interests of justice, the court imposed a custodial sentence of three months' imprisonment, stating that a longer sentence would have been imposed but for the pregnancy.
Court Disposition
accused sentenced to three months imprisonment
Orders
- The accused is sentenced to three months imprisonment.
- The right of appeal is explained to the accused.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI LAW COURTS)
CRIMINAL CASE 7 OF 2009
REPUBLIC
-VS-
FLORENCE GATHONI NGUGI
SENTENCE
On 30th April, 2009, the defence Counsel made passionate submissions in mitigation on behalf of the accused. She stated inter alia, that the accused was 4 months pregnant. Following the above revelations, the court made an order that the said pregnancy be examined and be confirmed at the Kenyatta National Hospital. The same is the largest referral hospital, not only in Kenya but also the Eastern African region. I am reliably informed by the PDR, Criminal Division that the said report has not been submitted to court. Though I am not a trained health worker, I am aware that with modern technology, a pregnancy test can be carried out in less than ten minutes. The court cannot guess the reason why the report has not been availed to help the court make an informed decision. In view of the above, I hereby order that the accused be taken today to Pumwani Maternity Hospital to be examined as to whether she’s pregnant. The doctor/gynecologist should also indicate roughly, the period of the pregnancy. In order to facilitate the passing of the sentence, the Officer-In-Charge of Pumwani Hospital is hereby directed to present the report on 13th May, 2009 at 10. 00 am. Accused remanded in custody.
MUGA APONDI
JUDGE
6TH MAY, 2009
REPUBLIC OF KENYA
AT NAIROBI
CRIMINAL CASE NO. 7 OF 2007
REPUBLIC
-VS-
FLORENCE GATHONI NGUGI
SENTENCE
From the record, it is apparent that the accused is a first offender who has pleaded “guilty” to the lesser but cognate charge of manslaughter, contrary to Sec. 202 as read with Sec. 205 of the Penal Code, Cap. 63, Laws of Kenya. Besides the above, it is apparent that the deceased was the husband of the accused for the last ten years. Unfortunately, during that period, the couple had notbeen blessed with any child. Surprisingly, after the accused was arrested, she indicated that she was pregnant. As a matter of caution, the court ordered for a medical examination to confirm the above. Today, at around 9. 00 am, I received a report from Kenyatta Hospital that the accused has a pregnancy of 19 weeks and 3 days. The good doctor was kind enough to even enclose the ultra-sound report. Though I could not interpret the photos, the report confirm the pregnancy. Apart from the above, it is apparent that on the material day, both the accused and deceased had taken alcohol. Thereafter, the couple differed and fought over a love affair that the deceased was purportedly having. Though the facts that were enumerated by the learned State Counsel initially indicated that the deceased had only received one blow, he later clarified at the end that the deceased had several injuries. That was after the court drew the attention of the learned State Counsel to the post-mortem report. In addition to the above, the court has considered the lengthy and moving mitigating factors by the defence counsel. Significantly, I have considered the family responsibilities of the accused. However, the court is of the considered opinion that the accused was economical on the truth. That is because the deceased had sustained several injuries as clearly shown by the post-mortem form. My interpretation is that the accused had intended to cause harm to the deceased. It is now ridiculous and ironical that the accused wants to use her pregnancy to gain leniency from this court. I do feel that for the ends of justice and fair-play to be met, the court needs to impose a custodial sentence on the accused. Due to her pregnancy, I hereby sentence the accused to 3 months imprisonment. Had it not been for her pregnancy, then the court would have ordered for a longer custodial sentence.
Right of appeal explained.
MUGA APONDI
JUDGE
13TH MAY, 2009