[2019] KEHC 2813 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

(CORAM: R. MWONGO, J.)

COURT CRIMINAL CASE NO. 14 OF 2018

REPUBLIC ………………………………………………….PROSECUTION

VERSUS

ISAAC MBURU NDUNGU alias BONOKO……………………..ACCUSED

JUDGMENT ON SENTENCE

1. The Accused was arraigned in court on 3rd July, 2018 on a charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Initially, the accused pleaded not guilty, and through his advocate, sought bail complaining that he was being tortured in prison. The court ordered a detailed report from the prison authorities and a pre-bail report. The reports were eventually availed and a pre-trial was conducted on 2nd October 2018, it having emerged that the accused was a repeat offender.

2. On 30th October, 2018, the defence indicated that they were negotiating a Plea Bargaining Agreement. On 4th April, 2019, the Plea Bargaining Agreement was signed. On 28th May, 2019, the defence entered mitigation, before the court had adopted the Plea Bargaining Agreement, and before the Post-Conviction Probation Officer’s report had been availed.

3. The facts admitted in the Plea Bargaining Agreement are as follows:

“THAT on the 18th June, 2018 around 8. 00pm the accused was heading home from work and upon arriving at his house he found the door already locked from the inside. When he knocked on the door, he heard his wife scream and immediately thereafter the children started calling out his name.

He rushed to the bedroom window, at the back of the house, broke it and used a flashlight to enable him see inside the room. The accused suddenly saw a man rushing out of the room and out of the house. He took a rungu which was nearby and started running after the said man. The accused caught up with the man, hit him severally with a rungu as he raised alarm. A few neighbours heard the noise and came to see what was going on. They rescued the deceased who was then recognized by the accused and was only covered in a bedsheet at the time. The neighbours advised the accused that if he had any issues with the deceased he should take him to the Police Station. The accused went back to the house and picked the deceased belongings and went back to where he had left him with the neighbours, gave him his clothes and thereafter they proceeded to the Naivasha police station.

At the station, the accused reported that he found the deceased sexual intercourse with his wife who was then called to the Police Station. The wife stated that she had no complaint against the deceased and after the clarification, the police at the reporting desk advised the parties to go and report back the following day. The accused did not report back the following day because the wife refused to go to the Police Station.

On the 19th June, 2018 the deceased went for treatment with history of been assaulted. He was treated and discharged on the same day. After supper he slept and in the cause of the night around 0500hours he started complaining of so much pain. He was rushed back to Engineer Hospital where he was treated and referred to North Kinangop for further management. While at the facility his condition deteriorated prompting the Officers Corporal Gatheru to record his statement. He was able to inform the police that the accused had assaulted him before losing consciousness and passed on 24th June, 2018.

A post mortem was carried out by Dr. Ngulungu on 25th June, 2018 and he was of the opinion that the cause of death was CHEST INJURY ATTENED BY RIB FRACTURES, DIAPHRAM LACERATION AND LUNG CONTUSION DUE TO BLUNT TRAUMA IN KEEPING WITH FATAL ASSAULT. The post mortem report is produced by Exhibit 1. After investigations accused was traced, arrested and charged.”

4. In compliance with Section 137F, G, H, and I of the Criminal Procedure Code, the accused was placed on oath and was taken through the Court Form for Recording of Plea Agreement. He answered in the positive all the questions arising under Section 137F of the Criminal Procedure Code. The Court satisfied itself, in terms of Section 137Gof the Criminal Procedure Code, that the Plea Bargaining Agreement was entered into voluntarily and that the accused was of competent and sound mind.

5. Accordingly, the Court accepted the Plea Bargaining Agreement, required the parties to sign the Court Form for Recording a Plea Agreement, adopted the same as a part of the record, and duly convicted the accused for the offence of Manslaughter contrary to Section 205 of the Penal Code.

6. In mitigation, the defence counsel added to prior in submissions mitigation, stating that the accused was a first offender; that he acted out of provocation and needed to protect his family when he found the deceased who was a stranger in his house. Counsel pointed out that the accused went to the police station and then to hospital with the deceased who was treated and discharged. This confirmed that the accused did not intend to take the life of the deceased. The accused succumbed to his injuries later.

7. I have taken into account the mitigation.

8. I have also taken into account the Probation Officer’s Report. It details the accused’s three previous encounters with the law. Stealing Stock in 2015; breaking into a building and committing a felony (case was withdrawn) in 2016 and in 2017 suspected stolen property. The Probation Officer however states that none of the previous cases has a direct linkage to the circumstances that caused the present offence.

9. The Report indicates that the accused was born 34 years ago in Engineer, Nyandarua South, and is the seventh born of nine children. He dropped out of school in Standard 6, learned carpentry and “became a genius carpenter whose name sold like a hot cake.” His dislike of shoddily done furniture - which he called bonoko - led to his being nicknamed Bonoko. He is married, and has three children, Samuel in Standard 7, Naomi in Standard 1 and Damaris who is in pre-school.

10. The Probation Officer was unable to get any comment from the victim’s family. The area Chief and Assistant Chief are opposed to the accused being released on a non-custodial sentence saying that he had been a thorn in the flesh of the community; that he had been a suspect in several cases and is therefore unwanted in the area. The accused’s own attitude according to the probation report, is that he is remorseful and is willing to be law abiding and to comply with any conditions set by the court.

11. The Probation Officer’s conclusion and recommendation is that the accused is a hard-working man who offered a means of livelihood to many young people around his area as he is a genius carpenter and designer. He has three school going children. The report recommends that should the accused be given a non-custodial sentence, he should be advised to relocate with his family from Engineer. Finally, that a probationary sentence will enable the accused benefit from counselling and therapy to enable him to reconstruct his social-psycho well-being.

12. Having considered the entre circumstances surrounding the commission of offence which was provoked, and having heard the mitigation and considered the probation report, I must now mete an appropriate sentence.

13. It is agreed that the accused was provoked. Provocation, according to paragraph 23. 8 of Kenya’s “Sentencing Policy Guidelines” is a mitigating circumstance:

“23. 8 Mitigating circumstances warrant a more lenient penalty than would be ordinarily imposed in their absence. They include:

1. A great degree of provocation.

Indeed provocation is also a defence to murder(See Maina Tumken v. Republic [1965] EA 496 C.A.,which recognizes an accused killing:

“in the heat of passion without regarding his self-control.”

14. The statutory sentence for the felony of manslaughter is imprisonment for life. This is a punishment I cannot impose in light of the mitigating circumstances, should I be minded to impose a custodial sentence.

15. Here the accused, in the heat of passion and having seen deceased with his wife in his house, chased him and hit him with a rungu. The deceased died whilst undergoing treatment in hospital six days later.

16. I have noted the views of the community represented by the Area Chief and Assistant Chief. The accused is considered unwanted, as a thorn in the flesh, because of his history of offences. They think that he risked being lynched by the community. I have also noted the recommendation that if the accused is released on a non-custodial sentence, he ought to relocate with his family. That includes the case of release on probation, which I note would assist the accused reconstruct his social psycho well-being.

17. Taking all these matters into consideration, I sentence the accused to seven (7) years imprisonment on the following conditions:

a) The sentence shall run from the date of the accused’s first incarceration in this matter.

b) Should the accused maintain good conduct and peace for the period of eighteen months (18) from the date of this judgment, then:

i) the remaining term of the custodial sentence shall stand suspended; and

ii) the accused shall be released to serve a one (1) year probation period on a programme to be designed and assigned by a Probation Officer in the area where the accused’s family shall be living, provided that such location shall not be in Engineer Area.

iii) Should the accused have any negative contact with the law or commit any offences within three (3) years from today’s date, the suspended sentence shall be re-imposed and he shall serve the remaining term thereof.

18. Right of appeal fourteen (14) days

19. Orders accordingly.

Dated and Delivered at Naivasha this 17th Day of October, 2019

_____________________________

RICHARD MWONGO

JUDGE

Delivered in the presence of:

1. Maingi for the State

2. Miss Kithinji for Accused

3. Accused - Isaac Mburu Ndungu alias Bonoko - Present

4. Court Clerk – Quinter Ogutu