[2022] KEHC 10023 (KLR)

Republic v JGK (Criminal Case 10 of 2018) [2022] KEHC 10023 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10023 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 10 of 2018

EM Muriithi, J

May 12, 2022

Between

Republic

Prosecution

and

JGK

Accused

Judgment

1. The accused who has been in custody since 1/2/2018 awaiting his trial for murder c/s 203 as read with 204 of thePenal Code, pleaded guilty to the lesser charge of manslaughter c/s 202 as read with 205 following a plea bargain agreement dated 1/12/2021.

2. The facts admitted by the appellant under the plea bargain agreement were as follows:9. On the 22nd day of January 2018 at around 1000hrs Martin Kabiringo was riding a motorbike along the road from Muluontoine towards Mutuati market. On arrival at the road junction to Leeta secondary school, Martin Kabiringo saw the accused person who emerged while armed with a panga and went ahead and attacked the deceased person Elizabeth Thirindi Mwitho who was walking along the road towards Mutuati market. The deceased was cut on the chin and she sustained a deep cut and she fell to the ground.10. Martin Kabiringo then stopped at the scene of the crime. When the accused person saw Martin Kabiringo he dropped the panga which he had in his possession and ran away.11. Martin Kabiringo called Johana Laibuni who was the brother to the deceased person one Johana Laibuni and informed him about the attack upon his sister by the accused person. Johana Laibuni then took the deceased to Maua Methodist Hospital. Martin Kabiringo then reported the matter at Mutuati Police Station.12. The deceased succumbed to her injuries on 23rd January 2018. The Postmortem was conducted on the 31st day of January 2018 and the cause of death was found to be cardiopulmonary arrest due to severe hemorrhagic shock due to deep cut with sharp object at the jaw bone.13. The accused person had disappeared after commission of the offence but on the 31st day of January 2018 he was spotted at Meeira village whereby he was arrested by police officers and escorted to Mutuati Police Station and later charged with the offence of murder.”

3. The court convicted him of his own plea of guilty. During the sentencing proceedings and in mitigation Counsel for the Defence, Mr. Thangicia raised the issue of the accused’s mental status, which at some point in course of pendency of his trial had been established unstable and the accused certified not fit to plead before he was confirmed sound and fit to plead before the plea bargain proceedings. Counsel then urged the court pursuant to section 12 of the Penal Code to find the accused not guilty by reason of insanity.

4. The DPP’s Ms. Kitoto urged that the accused had already been convicted on plea bargain and all that remained was to pass appropriate sentence.

5. In this case, although there was no evidence that the accused was of unsound mind at the time of the commission of the offence in 2018, there was evidence from Psychiatric Reports dated 8/2/2018 that he had a history of mental illness and had been undergoing treatment since 1995 as follows:“[The accused] has been treated for a mental disorder since 1995 in Mathari Hospital, last admission last year 2017 in Ward 5 of Mathari Hospital….ConclusionPatient suffers from a mental disorder called schizophrenia. He is currently of unsound mind. Requires admission to a mental hospital.”

6. An updated psychiatrist report of 25th October 2018 found the accused fit to plead as follows:“The patient suffers from a mental disorder called Schizophrenia. He has been on treatment since January 2018. He has now recovered and he is of sound mind. He is now fit to plead. Long term follow up by a Mental health specialist is required.”

7. This report was the basis for the court’s acceptance of the voluntariness of the plea to the charge of murder on 30/10/18 when the accused pleaded not guilty.

8. The court does not accept, as suggested by the Defence Counsel, that the accused may benefit from section 12 of the Penal Code as there was no evidence in terms of the provision that “at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission”:“InsanityA person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.”

9. Although, the accused had only to prove insanity on a balance of probability as observed by the Court of Appeal in Mwachia Wakesho v. R Court of Appeal at Mombasa Criminal Appeal No. 8 of 2016 of 3rd December 2021, he did not avail himself of such opportunity provided under section 12; and, although the court enquired into the question of insanity of the accused as counselled inLeonard Mwangemi Munyasia v. R [2015] eKLR as the matter did not go to trial, the circumstances of the killing were only as given in the plea bargain agreement.

10. As held in Mwachia Wakesho –“Where, as here, it emerges from the evidence that the defence of insanity is in issue, (and the standard in that regard is on a balance of probabilities) the prosecution is required to disprove it. (see Tadeo Oyee s/o Duru v. R (1959) EA 407. )”

11. The Court recognizes the limitation of the test of insanity as observed in Leonard Mwangemi Munyasia, supra that–“The test is strictly on the time when the offence was committed and no other. Yet it would be virtually impossible to lead direct evidence of the exact mental condition of the accused person at the time of the commission of the crime.”

12. There was no evidence as to what transpired at the scene of the incident of the killing other than what the accused admitted on the facts presented by the Prosecution in the Plea Bargain Agreement. By pleading guilty under the plea bargain agreement to the lesser offence of manslaughter, at a time when his mental state has been confirmed sound, the accused denied the Prosecution to adduce evidence that he was of sound mind at the time of commission of the offence.

13. In Wanyonyi v. The Republic, (1976-80) KLR 1642, the Court of Appeal, Kisumu ((Criminal Appeal 74 of 1979)), the Court (Madan, Law & Potter JJ A) of 12th June 1980 considered the consumption of chang'aa as one of factors affecting sentence, in an appeal against the sentence of eight years' imprisonment imposed on him by Cotran J on 28th November 1979 in Criminal Case No 51 of 1979 after he had pleaded "guilty" to manslaughter. In a judgment delivered Madan JA delivering the Judgment of Law JA and himself set out in full hereinbelow said:“The appellant was convicted on his own plea of "guilty" to manslaughter and was sentenced to imprisonment for eight years. The deceased's post mortem examination showed he had a stab wound on the right frontal region of the head, bruises on the chest and subdural haematoma. According to the prosecution case, the deceased was beaten with rungus and pangas. In sentencing the appellant, the judge described it as a very bad case. He pointed out that in fact two men were killed, the deceased and another person, only upon suspicion of stealing their employer's tools. The sentence of eight years' imprisonment cannot be said to be wrong in principle; but we feel that the appellant may have been very much under the influence of the chang'aa which he had admittedly consumed on the afternoon of the crime, to the extent of unduly inflaming his resentment against the deceased. In all the circumstances, and having regard to the appellant's previous good character and to his long period of detention before trial (fifteen months) we feel that his sentence is unduly heavy, and reduce it to one of five years' imprisonment. Appeal against sentence allowed.”

14. Again, in Andrew v. R (1976-80) KLR 1688, the Court of Appeal also considered a sentence of 5 years, with 11 months of pre-trial detention, sufficient punishment in a case of manslaughter. On the case-law, it would appear that an imprisonment for a term of six years meets the justice of the case of manslaughter, generally, unless particular aggravating or mitigating circumstances dictate a higher or lower sentence.

15. In the circumstances of the case, where the killing appeared to have been unprovoked and inexplicable by any motivation on the part of the accused as to suggest the act of a disturbed mind, if not proved legally unsound, and the court accepts the evidence of the mental status of the accused as set out in the psychiatric reports to diminish his responsibility in the same sense as the intake of Chang’aa alcohol in the Wanyonyi case, supra.

16. The Court finds that a sentence of imprisonment for a period of six years meets the justice of this case.

Orders 17. The accused who has been convicted on his own plea of guilty to the offence of manslaughter c/s 202 as read with 205 of the Penal Code is sentenced to serve imprisonment for six years commencing, pursuant to section 333 (2) of the Criminal Procedure Code from 1/2/2018 when the accused was first remanded awaiting his trial.

18. The accused has been in custody since 1/2/2018 when he was first remanded to await his trial. He has therefore served a full four years and three months in custody. Consequently, the accused has with remission which he is entitled to under section 46 of the Prisons Act served his full 2/3rd of his sentence of imprisonment for six years.

19. Accordingly, there shall be an order for his immediate release from custody unless he is otherwise lawfully held.

Order accordingly.DATED AND DELIVERED THIS 12TH DAY OF MAY 2022. EDWARD M. MURIITHIJUDGEAppearances:Mr. Thangicia for the Accused.Ms. Nandwa & Ms. Kitoto, Prosecution Counsel for DPP.