[2023] KEHC 19641 (KLR)

Republic v Kailikia (Criminal Case E050 of 2021) [2023] KEHC 19641 (KLR) (30 June 2023) (Sentence)

Neutral citation: [2023] KEHC 19641 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case E050 of 2021

EM Muriithi, J

June 30, 2023

Between

Republic

Prosecutor

and

Evans Mutwiri Kailikia

Accused

Sentence

1. The accused has been convicted on his own plea of guilty to the offence of Manslaughter Under Section 202 as read with 205 of the Penal Code following a Plea Bargain Agreement reducing the original charge of Murder Under Section 203 read with 204 of the Penal Code.

2. The deceased was the accused’s child.

3. Counsel for the accused in mitigation urged the court that: -“Accused regrets committing the offence in circumstances when accused was installing discipline to the deceased who is his son. In the process he unintentionally hurt the deceased who succumbed to this injury. While in custody, the accused has undergone reformation and we pray for a non-custodial sentence”.

4. The accused himself mitigated saying:“I have lost my mother two months after I was arrested. I am the first born and other children are young and they require education and guidance. I am 30 years this year. I have studied various discipline, and I can help other people outside. I did not intend to kill my son”.

5. For the DPP it was urged that “disciplinary chastisement and killing are different….Being the father of the deceased the accused right to offer care, protection and guidance to his son…. After it occurred the accused did not take his son for treatment at hospital. It is the children’s mother who came and took his child to hospital and he was pronounced dead on arrival. The Pre-sentence report is not favorable. The accused is a person of rage who requires rehabilitation on how to control his anger and a custodial sentence is appropriate.”

6. The Pre-sentence report by the Public Officer, Maua was negative for non-custodial sentence as follows:“The offender is 29 years old; he was born and brought up in Antuambui Sub-location in Igembe North Sub-county. He is a father to one child, who lives with the mother. He is currently separated from his wife.He was separated with the mother to the victim and was living with another wife (Faith Gatwiri) at the time of the offence.He admits the offence and stated that he committed the same without his knowledge. He prays for a lenient sentence so that he may be able to take care of his wife and child.His father who termed him as a violent man is opposed to his release on a non-custodial sentence and stated that if released he might take the law in his hands and revenge the death of his first grandson.His wife stated that she had cautioned him severally about his cruelty to the child whose mother had left due to violence. She stated that she will be comfortable with the decision of the court.The mother to the victim could not be reached, however those interviewed stated that she is still bitter since she does not have another child to date.The Area Assistant Chief is opposed to his release on a non-custodial sentence stating that the community members are afraid of his return.Recommendation:Considering the above findings, I find the accused person not suitable for a non-custodial sentence and recommend that the court deals with him otherwise.”

7. The facts of this case set out in the Plea Bargain Agreement also cast the accused as a violent person who bludgeoned his own child using a “bakora” and a whip to the point of death, as follows:“PART 3. FACTUAL BASIS OF OFFENCE(S) CHARGED 9. This is a case of murder contrary to section 203 as read with section 204 of the penal code. The brief circumstances surrounding this case are that on 4th August, 2021 at Gichaki village neighbour's heard the accused beating the deceased who is his son however no one wanted to assist as they were afraid of the accused.

The deceased mother while hawking water melon arrived at where the deceased resides and saw a huge crowd of people gathered around the plots. Upon enquiry she was informed that the deceased had beaten the deceased. Immediately she reported the matter at Laare police station and police arrived at the scene (house of the accused) and found the deceased lying unconscious on the bed. The mother of the deceased looked at her son and noticed that her son had suffered from serious head injury and was oozing blood from the head.The deceased was escorted to a hospital in Maua and later transferred to Meru general hospital where he passed on 4th August, 2021. Investigation in this matter ensued and police were able to recover a blood stained "bakora" and whip from the house belonging to the accused. A post-mortem was subsequently conducted and upon examination the cause of death was severe head injury due to a heavy blunt force trauma to the head. Upon completion of the investigation the accused was arraigned in court.”

8. The Post Mortem Report indicated the cause of death as “severe head injury due to heavy blunt force trauma to the head” with a sketch indicating multiple bruises on the head and face and lower limbs of the child.

9. The court agrees with the DPP that this was not a case of disciplining a child but killing in circumstances as shown on the Pre-Sentence Report where accused might have been getting back at the mother of the child with whom the accused was separated and was living with another wife and the child of the first wife.

10. The court considers that an appropriate sentence is one but that deters the accused and others like him and also reforms and rehabilitates the accused. A custodial sentence will allow such deterrence, reformation and rehabilitation. A sentence of imprisonment for ten (10) years is appropriate.

ORDERS 11. Accordingly, for the reasons set out above the court having convicted the accused for the offence of Manslaughter under Section 202 as read with 205 of Penal Code, sentence the accused for imprisonment for ten (10) years.

12. The sentence shall commence on August 25, 2021 when the accused was remanded to await his trial.

Order accordingly.

DATED AND DELIVERED THIS 30TH DAY OF JUNE, 2023EDWARD M MURIITHIJUDGEAppearancesMs A Gitonga Advocate for the Accused.Mr Masila, Principal Prosecution Counsel for the DPP.2MERU HCCRC NO. E050 OF 2021