[2022] KEHC 2429 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CRIMINAL CASE NO. 8 OF 2013

REPUBLIC......................................................................................................PROSECUTOR

VERSUS

IBRAHIM BUSOLO SALEH.........................................................................1ST ACCUSED

MOHAMED CHITECHI WATAKO.............................................................2ND ACCUSED

OMAR MUSUNGU JUMA.............................................................................3RD ACCUSED

THOMAS AKOKO NABUKO........................................................................4TH ACCUSED

RULING ON SENTENCE

1. On 10th December 2021, I found the accused persons herein guilty of the offence of manslaughter, contrary to section 205 of the Penal Code, Cap 63, Laws of Kenya, and convicted them. I thereafter directed the Kakamega County Director of Probation to look into the antecendents of the accused persons and to file a report, to guide me in determining sentence. That was done, and four reports have been placed on record, three dated 24th January 2022 and the other 25th January 2022. A sentencing hearing was conducted on 2nd February 2022.

2. The report of the Probation Officer, on first accused, indicates the accused expresses remorse, stating that a young man lost his life following the events. He pleads for leniency, saying that he was at the scene in his administrative role, and that he found that the deceased had already been hurt by the crowd of responders. The family of the victim was said to be bitter, although not hostile to the first accused. It is recorded that the first accused was a person of good conduct, hence the reason he was bestowed with the position of senior village elder. The report on second accused indicates that he is contrite, and regrets it, and prays for leniency. He is said to be a person of good conduct. The family of the victim is said to be urging justice, as it was of the view that the second accused was not remorseful. With respect to third accused, the report indicates that the family of the victim was still bitter with the accused persons over what happened. The third accused is himself remorseful over what happened. The report on the fourth accused, indicates that he too is remorseful, and prays for leniency. The probation office recommended that the accused be put on probation for three years.

3. At the sentencing hearing, Mr. Osango, Advocate, for first accused, reiterated the contents of the report by the probation office. He emphasised on the remorse of the part of first accused, and the fact that he was a responsible person overall. He cited Republic vs. Stephen Mwai Ndeti & another [2018] eKLR (Odunga J). Ms. Andia, Advocate, for the rest of the accused persons, expressed similar sentiments. She pointed out that the accused had learnt their lesson, and in the spirit of reconciliation, they should be allowed to mend their ways, and, therefore, pleaded for leniency. The Advocates urged the court to consider non-custodial sentences for the accused.

4. On his part, Mr. Mwangi, for the State, submitted that a life had been lost, and that responsibility on the death had been placed on the accused persons. He urged that a message must go out that whenever a life is lost there are consequences for those involved. He submitted that probation service for the accused would not be adequate punishment for the crime. He urged for a custodial sentence.

5. In the judgment of 10th December 2021, I had found that the accused persons were not involved in altercation that was there between the deceased and his siblings, and that they only rushed to the scene to answer a distress call raised by the wife of one of the brothers of the deceased, who was involved in the tussle, who had screamed that her husband was being killed. There was evidence that several people responded to the call, including the accused persons, and some of the responders went out looking for the first accused, the local village elder. The accused persons and the deceased had no issues that day as between themselves, and it was the false distress call that set in motion the events that led up to the accused being at the scene, and acting in the manner that they did. It is unfortunate that the deceased died in circumstances where he was completely blameless, for he was not the trigger of the family fracas that provoked the unfortunate events.

6. Although there was evidence that placed the accused in the scene, and portrayed them as actively engaged in the assault on the deceased, there was inadequate evidence to demonstrate whether the accused persons bore the greatest responsibility for the death. There were other individuals who responded to the distress call, and who participated in the events, including the beatings, but who were not presented court. Indeed, at least for the first accused, there is evidence that he was not even the first at the scene, for he was alerted of the goings on there by some of the first responders. The prosecution called only four witnesses, and critical witnesses, such as the pathologist, did not testify. The prosecution presented a partial, rather than a full, case. The pathologist would have pinpointed the cause of death, which would have gone some way in determining the responsibility of either or all of the accused persons, including the fourth accused, who is said to have had delivered the killer blow. I shall bear that in mind as I consider the appropriate sentence to impose in the circumstances.

7. I have looked at the probation officer’s reports on the accused persons. The accused persons are all in middle age, and are portrayed as responsible members of the community. The State did not bring out any facts at all that can tell against them. They have expressed remorse, and prayed for leniency. I note that the family of the deceased is still bitter, and pray for justice. I have to look at the overall picture, including the circumstances under which the offence was committed, as highlighted above. I should also take into account the fact that the four witnesses who testified were all immediate family members of the deceased. The fact that the offence was committed in 2012, the charges were brought in 2013 and the matter has been dragging in court since then, is another consideration. The case has been on the shoulders of the accused over all those years, and they have spent time in custody over the same, both before they were released on pre-trial bond and after conviction.

8. The penalty for manslaughter is a maximum of life imprisonment. The sentence is not mandatory, but discretionary, and the court may consider, by virtue of section 26 of the Penal Code, to impose a shorter term of imprisonment or to impose other forms of punishment as substitutes. In view of everything that I have stated above, and guided by the decisions in Republic vs. Phanice Mokeira Shem [2015] eKLR (Nagillah J), Republic vs. Santalino Ongiro Obore [2018] eKLR (Nyakundi J), Republic vs. Stephen Mwai Ndeti & another [2018] eKLR (Odunga J), Republic vs. Michael Mutiso Munyoki [2020] eKLR (Kemei J), Republic vs. Anthony Kyalo Ndaka [2020] eKLR (Kemei J), Republic vs. Ndung’u King’ori [2021] eKLR (Mshila J) and Republic vs. Justo Mwamba M’irandu [2021] eKLR (Muriithi J), I find that a non-custodial sentence would suitable in the circumstances. Consequently, I order that the four accused persons herein serve probation for three years under the supervision of the Kakamega County Probation Officer.

9. There is a right of appeal to the Court of Appeal, to be exercised within fourteen days, should either party to these criminal proceedings be dissatisfied with the conviction and sentence herein. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF FEBRUARY, 2022

W MUSYOKA

JUDGE

Mr. Erick Zalo, Court Assistant.

Mr. Mwangi, instructed, by the Director of Public Prosecutions, for the state.

Mr. Osango, Advocate, for first accused.

Mr. Ondieki, Advocate, for second accused.

Ms. Andia, Advocate, for 3rd and 4th accused.