[2017] KEHC 35 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO.21 OF 2015

REPUBLIC...................................................PROSECUTION

-VERSUS-

GEOFFREY MAINA ONCHIRI..........................ACCUSED

JUDGEMENT

Before this court is one Geoffrey Maina Onchiri hereinafter referred as the accused who was arraigned in court on 26/7/2013 with a charge of murder contrary to section 203 as read with section 204 of the Penal Code. The prosecution on behalf of the state alleges that the accused on the night of 9th and 10th day of July 2013 at Sholinge Sub-Location in Kajiado County accused murdered Dorcas Atemu Maina. The accused pleaded not guilty and was represented at the trial by Mr. Ochieng and the prosecution was conducted by the senior prosecution counsel Mr. Akula.

Summary of the prosecution case

The prosecution adduced evidence to prove the guilty of the accused through the testimony of their eight witnesses. The evidence received by this court can be summarized as follows:

The state commenced their case by placing before court the testimony of PW1 Stanley Moyo Simporoiwho testified as the Area Chief where the incident of murder took place. According to PW1 while at home, he received a telephone call that a body of a human being has been discovered at Kwasaimos. This made PW1 to travel to the scene only to notice a body of a female lying on top of a mattress. This called for police action from Isinya police station. Pw1 stated that the police moved into the scene to investigate the cause of death of the deceased.

PW2 Hellen Andeya is the mother to the deceased. She testified that following the death of her daughter the police summoned her to participate in identifying the body during the postmortem at the City Mortuary. PW3 Lincolin Gitau a clinician attached to Kajiado District Hospital testified as to the role he played in examining the mental fitness of the accused. In his findings on examination PW3 confirmed that the accused is an adult of sound mind and medically fit to follow and defend himself in any court proceedings.

PW4 PC Joshua Masaa the detective from Isinya police station on instructions from the Deputy OCS did visit the scene of the murder at Kwasaimos. PW4 further told this court that on arrival the body of the deceased with a deep cut on the forehead was lying on a mattress laid on the floor. In cross examination by Mr. Ochieng learned counsel PW4 confirmed that the body was lying in one of the rooms of the house. After taking the necessary police action PW4 in conjunction with his superiors made arrangements to have the body transported to the City Mortuary. It was at the city mortuary Pw8 carried out a postmortem in his presence.

PW5 Sgt Peter Ndambuki a police officer attached to Keroka police station gave evidence on the action he took to arrest the accused who was travelling in motor vehicle registration KBJ 947. According to PW5 he was acting on instructions from Isinya police station who had the particulars of the accused as the prime suspect to the murder of the deceased. PW5 further stated that he was able to execute the instructions by arresting the accused and later handed him over to Isinya police station for further action.

PW6 C.IP Kibet who also attended to the incident gave a sequence of events as the investigating officer. PW6 testified that information gathered from the scene they suspected foul play. PW6 further told the court that in retrieving the body from the house where it was lying a search for the accused commenced. The first action from PW6 was to involve criminal intelligence unit to track the movement of the accused through his Safaricom line. According to PW6 testimony the signals traced the accused having boarded a Kisii bound bus from Machakos bus station. The accused who was apprehended by police officer PW4 in company of his three children was escorted back to Isinya Police Station to face the charge of killing his wife the deceased. In cross examination by Mr. Ochieng for the accused PW6 alluded to the cause of death as the fight between accused and the deceased. PW6 further stated that in the neighbourhood there were no witnesses who could attest as to the fight and violence involving the accused and his wife.

PW7 Simon Antony testified as the landlord who rented out the house occupied by the accused and his family since 2013. PW7 further told this court that he will recall that the same house also had enough room where the Mainas operated a hotel. It was PW7 testimony that on the 10/7/2013 he was to learn from the employee of the accused that he had killed the deceased. What followed from PW7 was to visit the scene and have the murder reported to the area chief PW1.

PW8 Dr. Johansen Oduor the government chief pathologist who examined the deceased on 19/7/2013, indicated that she suffered haematoma to the chest muscles, fracture to the 3rd and 4th ribs; exclusive haematoma to head and also subdural to the nervous system. PW8 formed the opinion on examination that the deceased death was due to head injury due to blunt object. The postmortem report was admitted in evidence as exhibit 2.

Defence

The accused in his defence denied the charge connecting him with the murder of the deceased. He however gave a detailed explanation on the events of the fateful day. The accused alluded to the permission he had been given by his employer in order to be with his children. The accused further told the court that the deceased was with him at their residence attending to customers at the hotel. In his testimony the accused made all the necessary arrangements to enable him travel to Kisii but the deceased was to be left behind to attend to the business. The accused further touched on the details of his itinerary by bus from Nairobi to Kisii. It was in the middle of the journey at Keroka Township that their bus was stopped and police officers picked him from the bus. According to the accused that is the time he was made aware that his wife the deceased has been found dead.

Submissions by the defence counsel

Mr. Ochieng learned counsel for the accused filed written submissions and raised the following issues: That the prosecution has failed to establish the case against the accused beyond reasonable doubt. Learned counsel argued that in none of the eight witnesses was an eye-witness to the murder. Learned counsel further contended that from the explanation given by the witnesses and the accused it was possible that an unknown assailant may have inflicted harm to the deceased. In learned counsel’s submissions the circumstantial evidence relied upon by the prosecution failed the sufficiency test for this court to rely on it to convict the accused.

Submissions by the state

Mr. Akula, the senior prosecution counsel for the state in reply submitted that the prosecution has presented cogent and credible evidence against the accused. It is further the submissions by learned prosecution counsel that elements necessary to prove the offence of murder do exist to positively implicate the accused in killing his wife. Learned prosecution counsel advanced the argument and invited this court to give due consideration on the conduct of the accused after the murder. According to learned counsel there was no third party who viciously inflicted the fatal injuries as the accused person wants this court to adopt such an hypothesis without supporting evidence. Learned prosecution counsel urged this court to find that the prosecution has discharged the burden of proof beyond reasonable doubt and enter a verdict of guilty and conviction against the accused.

DISCUSSION AND DETERMINATION:

I have considered the charge, the evidence and submissions by the learned counsels for the state and the accused. The accused in this case has been charged with the offence of murder contrary to section 203 of the Penal Code. Under this section murder is defined as:

“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”

The prosecution is therefore mandated under the law to proof beyond reasonable doubt the following elements: (1)That the deceased Dorcas Atemu Maina is dead.

1. That the death of the deceased was unlawful. (2)That the perpetrator of the murder acted unlawfully and with malice aforethought. (3)That it was the accused who committed the offence.

In all these circumstances the burden of proof always rests with the prosecution and at no time will the accused person defence be used to fill gaps to the prosecution case. This legal principle is well illustrated in the cases of Woolmington v DPP [1935] AC 462 and Miller v Minister of Pensions [1947] 2 ALL ER 372. “The dictum in both cases is that the standard of proof of beyond reasonable doubt does not mean proof beyond the hilt or iota of doubt.”

Secondly in adjudication of criminal cases in the event the court analysis of the evidence for the prosecution and there is a lapse or doubt as to involvement of the accused person, in the murder, such a doubt should be resolved in his favour to have him acquitted of any culpability.

It is against this background this court has to evaluate the evidence and make a finding whether the accused inflicted the fatal injuries from which the deceased died.

The case against the accused is purely circumstantial. It is trite that for circumstantial evidence to sustain a conviction it must point irresistibly to the accused. In a plethora of cases by the superior courts i.e. Musili Tulo v Republic [2014] eKLR, Simon Musoke v Uganda [1958] EA 718, Republic v Kipkering Arap Koske 16 EACA 135, Republic v Alias Abanga Bwire. The court has laid down certain principles with regard to circumstantial evidence as follows:

(i) The circumstances from which an inference of guilt is sought to be drawn must cogently and firmly be established.

(ii) Those circumstances should be of definitive tendency unerringly pointing towards the guilt of the accused.

(iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else.

(iv) It is also necessary before drawing the inference of accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.

These same principles were affirmed to by the learned Author Sakar on Evidence 14th Edition 1993 who defined circumstantial evidence as follows:

“The evidence afforded not by the direct testimony of an eye-witness to the fact to be proved, but by the bearing upon that fact or other hand and subsidiary facts which are relied upon as inconsistent with any result other than the truth of the principal fact.”

From the foregoing this court must answer the question whether the inferences to be drawn from the eight witnesses for the state are incompatible with the innocence of the accused person incapable of any other explanation in any other way but the guilt of the accused. Secondly whether or not there are no co-existing circumstances which can weaken or destroy the inference.

In answer to the above questions this court proceeds to evaluate and consider each ingredient of the offence as the state committed itself to prove as provided for under Section 107(1) of the Evidence Act.

Death of the Deceased

There is no dispute that the deceased Dorcas Atemu Maina was a wife to the accused person prior to her death. As per the testimony of PW2 Hellen Andeya the mother to the deceased in July 2013, the accused person was still staying with her daughter at Kiserian. On the 10/7/2013 PW1 confirmed receiving a death notification of the deceased from the area chief. He visited the home and confirmed the death of the deceased. The deceased body was escorted to the City Mortuary by PW4 PC Jushua Masaa where on 19/7/2013 a postmortem was carried out by PW8 Dr, Johansen Oduor. According to PW8 the examination and postmortem findings where in respect of the body of a female identified by PW2 as that of the deceased beyond reasonable doubt.

(b) Secondly, is whether the death of the deceased was unlawful:

The legal principle is well stated in the case of Guzambizi S/O Wesonga v Republic [1948] 15 EACA 65. The principle of law in this case is that, “all homicides are considered unlawful unless those committed in advancement of justice or in defence of self or property, natural causes, ill-health or accident.” Emphasis underlined.

Death is therefore considered unlawful if it is caused through an act of another person. This definition connotes exceptions to the law which recognizes what I can refer to as legal homicides in circumstances justifiable in self-defence, property or defence of some other person executing of unlawful killing. However even under these exceptions the aims and scope of the law protects the right to live. This includes for example the deprivation of life is not merely permissible on defence of self or property. The law imposes the duty of care upon every citizen of this country to preserve and protect the right to life under Article 26 of the constitution. That is the reason why killing in self-defence under Section 17 of the penal code has a special meaning. I have in mind where the law prescribes that a person cannot act in self-defence unless he or she has exhausted all other reasonable alternatives before resorting to the use of force.

The test on self-defence in Kenya is based on English Law Principles with foundational cases Palmer v Republic AC 1971 page 814 and 832 and Beckford v the Queen 1988 AC 130where the privy court held that:

“The defence of Self defence is one which can be and will be readily understood by any jury. It is a straight forward conception. It involves no abstruse Legal thought. ----only common sense needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, but may only do, what is reasonably necessary but everything will depend upon the particular facts and circumstances. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Other may not be if there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril remains then the employment of force may one o crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of prove remains then the employment of force may be by way of revenge or punishment or by way of paying off old score or may be pure aggression. There may no longer be any link with a necessity of defence. If a jury thought that in a moment of un expected anguish a person attacked had only done what an act what he honestly and instinctively thought was necessary that would be more potent evidence that only reasonable defensive action had been taken”

Going by the above authorities the concept of self defence has but factored in all various decisions as supported with the principles in the cases of Jane Koitee Jackson v Republic 204 CRA Appeal No. 146 of 2009, Robert Kinuthia Mungai v Republic 1988 1 KAR 611 and Republic v Joseph Kibet Rotich 2010 eKLR .The key guiding principles in these cases revolve around the consideration that a person is entitle to use force when he is under imminent danger or apprehension of injury but in applying such force it shall not be disproportionate to the attack. Secondly, in weighing the use of force circumstances like opportunity to retreat and other alternative options for the safety of life ought to have been exhausted before any retaliation to the aggressor. Thirdly, there must be an attack on the accused person. Fourthly, the force used by the accused must be such force as the accused believed, on reasonable grounds to have been necessary to prevent or resist the attack (See also Uganda v Mbulule 1975 HCB 225).

In the instant case the remote assertion that there ought to have been a domestic violence between the accused person with the deceased was alluded to by the investigating officer. The import of self-defence in this analysis is therefore to rule out any such circumstances existed placing the accused person in danger to kill his wife. In any event if the fight did take place at all the excessive force applied to inflict the injuries resulting in the death of the deceased could not have availed the accused person the defence of self.

According to the evidence of PW2 Hellen Andeya the mother to the deceased there was no indication that her daughter had been taken ill or involved in an accident which terminated her life. PW1 Stanley Moyo, the locational chief, PW4 PC Joshua Masaa, PW6 C.IP Kibet and PW7 all testified to the fact that on visiting the scene they found the deceased body on a mattress with evidence of severe injuries to the head. The postmortem report exhibit 2 produced in court by PW8 confirmed injuries to the respiratory, fracture of the ribs and extensive haematomia to the head. PW8 opined that as a result of the head injury the deceased succumbed to death. The circumstantial evidence therefore establishes that the death of the deceased was through an act of assault occasioning fatal injuries. The prosecution has therefore discharged the burden of proof that the death was unlawful.

(c) Malice aforethought on the part of the accused:

The offence of murder is committed when the prosecution has shown that at the time of omission or commission was executed the accused was motivated by malice. Section 206 of the Penal Code sets down what constitutes malice aforethought in brief to mean:

(1) An intention to cause death of another.

(2) An intention to cause grievous harm to another.

(3) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not….

(4) An intent to commit a felony.

(5) An intention to facilitate the escape from custody of a person who has committed a felon.

What section 206 provides for is in law described as the mens rea for the offence. This position was revisited in the case of Bonaya Tutut Ipu & Another v Republic [2015] eKLR. The court stated that:

“Malice aforethought is the mens rea for the offence of murder and it is the presence or absence of malice aforethought which is decisive in determining whether an unlawful killing amounts to murder or manslaughter.”

In the case of Paul Muigai v Republic [2011] eKLR the Court of Appeal held that, “malice aforethought is deemed established by the evidence proving an intention to cause death of or to do grievous harm to any person.”

In the locus classcus case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the predecessor of the Court of Appeal held thus that, “it is the duty of the court in determining whether malice aforethought has been established to consider the nature of the weapon used, the manner in which it was used, the part of the body targeted (sensitive or vulnerable), the conduct of the accused prior, during and after the killing; the nature of injuries suffered…”

From the evidence submitted by the prosecution particularly PW1, PW4, PW6 and PW7 the report on the murder was first conveyed to PW1. PW1 told the court that while at the scene he telephoned the police station who triggered police action on the matter. The evidence by PW1, PW4, PW6 and PW7 was categoric that the deceased had suffered serious physical harm. As at the time they arrived in the house she was already dead. They could not explain how the harm was done. It is imperative to note that PW8 Dr. Johansen who performed the postmortem gave credence to the observation made by PW1, PW4, PW6 and PW7 that the deceased had suffered multiple injuries with a serious one to the head. That therefore connotes that the deceased was attacked.

Whether the motive of the attacker was coupled with malice aforethought is a matter subject to be proven by the prosecution evidence. It is also clear from the prosecution that the alleged murder weapon which was used to inflict the injuries was never recovered. However PW8 Dr. Johansen has attributed to the head injury to have been caused by blunt trauma. It never emerged at the close of the trial the nature of the blunt objector weapon used to target the various parts of the body the deceased suffered harm. There is a presumption in cases of domestic violence the question of provocation more often than not is the trigger which deprives the other person the power of self-control and as a result sustained assault over shadows any meaningful positive communication.

As regards the circumstances of this case the manner in which this murder was committed the elements of provocation as defined under Section 207 and 208 of the penal code as an operative factor cannot be said to be farfetched. It is obvious that the unlawful act by the accused person was carried out in a discreet manner leaving the court to piece together the chain limit on circumstantial evidence to precisely place him at the scene. Without evidence of what exactly happened during that time, save for the evidence on the behavior of the accused person after the fact, the transaction of the murder fails the test of the ingredient of malice aforethought under Section 203 of the Penal Code.

This court has anxiously considered the evidence adduced in its entirely but is unable to find that the unlawful assault was accompanied with malice aforethought. In this case the inculpatory facts and the witnesses demonstrate that the deceased died out of an unlawful act. Secondly the sustained assault caused the death of the deceased. Thirdly the unlawful acts by the assailant were intentional but not adequate to establish malice.

The essence of this case by the prosecution is a manifestation where an unlawful act carried out caused the death of the deceased. The nature of the unlawful acts carried out are supported by the positive findings in the postmortem report exhibit 2. It is also the unlawful acts to hit the deceased on the head and the chest which fractured the ribs, was also dangerous which exposed her to serious fatal physical harm. In the foregoing I therefore substitute the offence of murder with that of manslaughter contrary to section 202 of the Penal Code as the one proven beyond reasonable doubt against the accused.

The final question which requires consideration is whether the evidence positively and circumstantially places the accused at the scene. I reiterate the principles in Simon Musoke, Republic v Kipkering, Abanga case (Supra) cited elsewhere in this judgement on circumstantial evidence. The circumstances relied upon by the prosecution arise from the testimony of PW2 and PW7. According to PW2 accused lived with the deceased as husband and wife. PW7 the landlord confirms that the accused rented his house which was both a hotel at the front and a residence at the rear. In the month of July 2013 including the 9/7/2013 the accused was still a tenant and occupied the house where the deceased body was recovered lifeless. The accused admitted being with the wife on 9/7/2013 together with the children before travelling to Kisii enroute through Nairobi. The dead body of the deceased was discovered by an employee who in turn informed the locational chief PW1. At that point PW1 rushed to the scene and confirmed the named person was dead but the rest of the family members were missing. In the same span of time the accused had left the residence for his rural home at Kisii.

When PW4 and PW6 took over the investigations the accused became the prime suspect. PW6 evidence points to the fact of searching for the accused through cell phone and in the evidence of PW6 the cell phone detected from the data located the accused travelling in a public vehicle registration number KBJ 947R. it is this same vehicle PW5 Sgt Ndambuki stopped at Keroka police road block on 10/7/2013 at 8. 15 pm and effected arrest against the accused. PW5 further confirmed that the accused was in company of his children. This confirms that the accused was arrested by PW5 about 300kms away from the scene while trying to escape.

As the evidence of PW1 indicates the alleged report, on the death was received in the night of the 9/7/2013. The visit to the scene by PW1, PW2, PW4 and PW6 was in early hours of between 7 – 7. 30 am on 10/7/2013. In the morning of 10/7/2013 the deceased body was found at the residence in their room used jointly with the accused. The prosecution witnesses PW1, PW2, PW4 and PW6 found no evidence that the door of the house was broken into and a third party gained entry. The accused person raised the defence of an alibi.

I have however weighed the circumstances and evidence which points out that the accused was with the deceased before travelling to Kisii. It is not a disputed fact that accused admits spending time with the deceased before taking off to his rural home. If this court was to apply the last seen theory of the 9/7/2013 and the time gap when accused was arrested at Keroka there was no possibility that somebody else killed the deceased. There is no evidence that suggests from PW1, PW2, PW4 and PW6 who visited the home that one had made a forcible entry from the outside in the night of 9/7/2013.

In the cases of Ndinguri v Republic [2001] 1 EA 179 and Ernest Asama Bwire Abanga alias Onyango v Republic Cr. Appeal No. 32 of 1990 the Court of Appeal examined the application of the circumstances of the last seen person evidence to convict the applicants as it was demonstrated that there were no other co-existing circumstances which weakened or destroyed the chain pointing at the guilty of the accused.

In my view contrary to the defence by the accused that the journey to Kisii was normal visit to his rural home, the circumstances from the evidence tell a different story. This court in absence to the answer to the question whether as at the time accused left for Kisii the deceased was alive is prepared to apply the provisions of section 111 and 119 of the Evidence Act (Cap 80 of the Laws of Kenya).

(111)“When a person is accused of any offence, the burden of proving the existence of circumstantial bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him.”

(119) “The court may presume the existence of any fact which it thinks likely to have happened, regard being to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

The accused had a rebuttable burden to explain that indeed before parting with the deceased he had not committed the unlawful act of causing her death. I am satisfied that the accused person lied in his defence.

Having considered the evidence cumulatively I have no doubt that the accused was the principal perpetrator who killed the deceased and tried to cover it up by creating a journey to his rural home. The Court of Appeal citing the case of Rafaeri Munya alias Rafael Kibuka v Republic [1953] 20 EACA 226while deciding the case of Ernest Abanga (Supra) observed as follows:

“The appellant there was convicted of murder and the case against him was mainly based on circumstantial evidence. In his sworn evidence at the trial, he made some denials which were obviously false. It was held that, “the force of suspicious circumstances is argued where the person accused attempts no explanation of facts which he may reasonably be expected to be able and intended to explain, false, incredible or contradictory statements give by way of explanation, if disapproved is disbelieved because of substantive inculpatory effect.”

It is trite that there is no burden of proof for the accused to prove his alibi defence. In the case of Kiarie v Republic 1984 KLR The court stated as follows:

“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and its sufficient if an alibi introduces into the mind of a court that is not unreasonable”

The principles on alibi defence are now well settled it is a matter of prime importance as held in Republic v Suska Singh s/o Waseri Singh & others 1939 6 EACA 145,the cogency and reliability of the alibi defence be properly examined against the entire evidence adduced by the prosecution. The court in this case held:

“If a person is accused of anything and his defence is an alibi; he should bring forward that alibi as soon as he can because, firstly if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval and; secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped”

In the instant case the accused denied the offence including any knowledge on how the deceased met his death. The implied alibi defence relied upon did not disclose his whereabouts in the night of 9th & 10th July, 2013. Secondly, he did not deem it for to disclose it in a timely manner by giving sufficient details of his whereabouts to enable the investigating officer to verify the alibi.

I think what the accused person tried to do at this late hour is to come up with fabricated alibi which to me has no proper particulars with the sole motive to obtain a benefit from it. I have considered all these matters but I am of very strong view that the alibi defence contains inherent weakness and incapable of being believed by this court.

It is a plea which did not cause any doubt on the part of the prosecution case that though his case is based on circumstantial evidence one can safely find that he committed the criminal act of killing the deceased. I give consideration to the fact that the accused in his statement to the police in answer to the charge never gave particulars of his alibi as to the names, address, time and persons he was with if any, when the offence was is alleged to have taken place. I therefore conclude that the version by the accused could not be reasonably taken to be true state of affairs.

The accused in this case gave obvious falsehood that he left his wife the deceased in good health. Secondly, that he was also to learn of the death when the police arrested him at Keroka police station road block while enroute to Kisii. That was an obvious lie. I find in totality the state did prove its case beyond reasonable doubt based on circumstantial evidence that between the 9th of July, to the wee hours of 10th July, 2013 there is sufficient evidence as to time and location placing the accused person at the scene of the murder. However the prosecution case rested entirely on the charge of manslaughter and not murder as initially preferred against the accused person.

In conclusion I find that the prosecution of manslaughter contrary to section 202 as read with section 205 beyond reasonable doubt. I reject the defence of an alibi and enter a verdict of guilty, convict the accused of the offence as substituted.

SENTENCE

I have considered the mitigation as advanced by the defence counsel on behalf of the accused. The prosecution counsel indicates that the accused should be treated as a first offender. The victim impact statement and pre-sentence report have also been factored in this sentencing hearing. On the face of all these the aggravating factors are that the accused killed his wife without any justification. I do not consider the mitigation of the accused to be sincere and truthful as can be deduced from his conduct after committing the heinous crime.

Further this court called for the children’s report in particular given the fact that they also victims of this offence having been orphaned by the loss of their mother. In tempering with the prescribed sentence under Section 205 of the penal code I have taken the approach on substantial compelling circumstances on the best interest of the children and their welfare. In a way their mother is gone but they still crave for basic maintenance and support from the surviving biological father. The evidence of the probation officer’s report is responsive on this issue.

Having found so and bearing in mind the objectives of criminal law is to punish crime, the imposition of any sentence should reflect this principle. I have considered extensively the rights of the victims in this case on the other hand with the rights of the accused on the other side of the fulcrum. Furthermore workable balance between these two factors becomes even more complicated with unique features of case like the present one which presents a third category of victims’ rights and needs. To identify and address the needs of the young children left behind by the deceased in the aftermath of the crime is something which cannot just be wished away. No matter what has happened they are entitled to protection under our constitution.

I have no doubt in my mind that in this death of the deceased both her family and children are hurt for the loss. The damage is much deeper to her biological children who one wonders whether they will ever know from the accused why their mother was murdered.

The compelling reasons that the children will still depend upon him for support and maintenance persuades me to tinker with this issue and pass a shorter term of imprisonment of 18 months. During this period the accused person is expected to undergo counselling and rehabilitation lessons to enable him reconnect with his children of tender years.

14 days right of appeal explained.

Dated, delivered and signed in open court at Kajiado this 18th day of September, 2017.

………………………………………..

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Ochieng for the accused

Mr. Akula for the Director of Public Prosecutions

Mr. Mateli Court Assistant

Accused