[2022] KEHC 2473 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

HIGH COURT CRIMINAL CASE NUMBER 16 OF 2018

REPUBLIC..................................................ODPP

VERSUS

HEZEKIEL K NJUI..........................ACCUSED

R U L I N G - S E N T E N C E

1. The accused person Hezekiel Kagiri Njui entered into a Plea Agreement with the prosecution for the lesser charge of Manslaughter Contrary to Section 202 as read with 205 of the Penal Code. It was stated that on 11th March 2018 at Prayer Centre Area in Bahati Location Nakuru North Sub County within Nakuru County he caused the unlawful death of Newton Njui.

2. The facts were that the deceased was his child. The child was living with his mother. On the night of 11th March 2018, the accused came from safari. After supper, he took the child and went to his house to sleep. At night his brother heard the child crying. He went to check. The accused told him that the child was having stomach problems. The brother went back to sleep. At about 4. 00 a.m., he heard the child crying. The crying was too much. He went to check again why the child was screaming. This time the accused told him not to disturb him.

3. The following morning on 12th March 2018, about 6. 00 a.m. the accused’s mother (grandmother to the child) went to accused’s house to get the child to prepare him for school. She found the door to accused’s house open, and there was no one inside. She wondered what could have become of the child and the father.

4. As she was wondering this, a neighbour came and told her that she had seen the body of the child by the roadside. The accused’s mother rushed to the scene. She saw the body of the child whose legs were tied together. The accused had disappeared. Police and scenes of crime personnel came to the scene and processed the scene. The accused was traced, arrested and charged with Murder after the cause of death of child was ascertained to be strangling. The post mortem form was produced as P. Exhibit 1.

5. The Plea Agreement was signed and the accused agreed to plead guilty to Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.

6. Upon pleading guilty to both the charge and the facts, the accused was convicted on his own plea of guilt.

7. The prosecution submitted that although the accused was a first offender he deserved a sentence of twenty (20) years imprisonment.

8. In mitigation the accused expressed remorse, and that he regretted the action he had committed. That he had been in custody for a while. He sought a sentence of eight (8) years imprisonment through his advocate Mr. Opar.

9. I have carefully considered his mitigation and the pre-sentence report. It is stated that the accused person abused illicit alcohol, bhang and miraa, and that on the material date he was under the influence of these substances. That he regretted his actions and pleads for leniency.

10. According to the report the mother of the child one Brenda Itoma was from Iteso – Teso South. They had separated and she had left the child in his custody. It was reported that her whereabouts were unknown.

11. It is noteworthy that the Probation Officer did not provide any information about the child, how old he was at the time of death, whether or not he went to school, what kind of relationship the accused had with his child and whether there was any reason and all that his intoxication could lead him to harm his own child.

12. The Probation Officer stated that the mother of the child left when the child was one (1) year old, and that it was difficult for the accused to parent the child, but the child was living with the mother of the accused.

13. The Probation Officer did not record any interview with the grandmother who was clearly the secondary victim and how this offence had affected her.

14. The probation officer attached proceedings said to be from a village baraza called by the chief to determine the feelings of the villagers should the accused be released on a non-custodial sentence. The villagers are said to have said they had no problem with him returning home. I am not certain that this is a proper procedure as the proceedings do not show the exact participation of the probation officer. It is not evident what questions were put to the villagers except whether they had any objection to the return of the accused. There is nothing as to the impact of the offence, and what if any would be their proposals. It looks as if they were presented with a set option, the release of the accused on a non-custodial sentence. If the community is going to be involved then the probation officer must avoid any appearance of bias towards a specific sentence.

15. I have taken all these into consideration, and the question in my mind is what could have offended the accused so badly that he would strangle his own child, tie his legs together, and dump the body on the roadside. Does such a person deserve the mercy of the court? It is possible that he would tortured this kid simply because he was intoxicated? That explanation is not acceptable. From the facts before me this kid was just a child, the accused was the person the child looked up to for protection, but instead, he did what he did.

16. It is noteworthy that his family has forgiven him and are ready to receive him home. However, the period he has been in remand is not proportional to the offence he committed. I have considered that by taking a plea agreement, he at least conceded that he did wrong. He needs more time in custody to deal with what he did.

17. He is sentenced to ten (10) years imprisonment from the date of remand; i.e. the 13th March 2018.

DATED, DELIVERED AND SIGNED VIRTUALLY THIS 1ST DAY OF FEBRUARY 2022.

Mumbua T. Matheka

Judge

In the presence of:-

Court Assistant Edna

For accused: Mr. Opar

For state: Ms. Murunga

Accused present