https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7207

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CRIMINAL CASE NO. E003 OF 2025** **REPUBLIC……………………………………………..STATE** **VERSUS** **LYDIA GACHERU KANAKE……………………. ACCUSED** **SENTENCE UPON PLEA AGREEMENT** 1. Lydia Gacheru Kanake (Accused) was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge were that on the 5th day of January,2025 at Kipingo village, Gaceraka Location, Chiakariga Sub-County, within Tharaka Nithi County, unlawfully murdered Alice Gacucu. 2. The Accused was presented for plea before Nyaga J. on 4th April 2025 and she pleaded not guilty to the charge. She was granted bond terms and the case was set for pre-trial. 3. When the Case came up for pre- trial before me on 18th March 2025, the Accused stated that she wished to plea bargain her charge. The court granted parties time to undertake the plea negotiations. 4. Upon successful negotiations, a Plea Agreement dated 25th July, 2025 was filed in court on 23rd September 2025. The court admitted the Agreement upon being persuaded that the Accused understood her trial rights and had entered into the agreement voluntarily. 5. The Prosecution then preferred a lesser charge of manslaughter contrary to section 202 as read with Section 205 of the Penal Code. The Accused pleaded guilty to the charge on 25th October 2025, and a plea of guilty was entered by the court. 6. The Facts of the case as contained in the Plea Agreement and as read by the Prosecution counsel were as follows:- “The facts of this case are that on the 5th day of January, 2025 at Kipingo village in Gachereka sub-location in Ciakariga Sub-County, the accused went to her mother-in-law namely Jerica Kangaru and started quarreling her over allegations of witch craft in which she stated that the mother-in-law and other women had mention her in witch craft activities. In the process of their disagreement, the deceased person Alice Gacugu a relative of Jerica came and found Jerica trying to chase away the accused with a wooden stick. When the accused saw the deceased, she grabbed the stick from Jerica and began to strike the deceased on her head hence inflicting her with injuries. Alarm was raised and one Andrew came and separated he deceased from the accused and accused was chased away. The deceased also left. After sometime, the deceased’s condition worsened as a result of the injuries inflicted and when she was found by her relatives, she was lying unconscious. The deceased was taken to Materi hospital where they were referred to Komarock modern hospital where she passed while receiving treatment. Police officers went and collected the body and took it to Marimanti level 4 hospital mortuary for preservation. On the say day, the accused was arrested and escorted to Marimanti Police Station. On 10th January, 2025 a post mortem was done and was confirmed that the deceased cause of death was severe head injury on the left temporal region by a blunt object. The accused was then charged with murder contrary to section 203 as read with section 204 of the Penal Code which charge had upon successful negotiation been reduced to one of manslaughter. 1. The Accused confirmed the facts as correct and was convicted on her own guilty plea of the lesser offence of manslaughter contrary to section 202 as read with Section 205 of the Penal Code. The Court further directed the probation officer to file a pre- sentence report and a victim impact statement. 2. The court subsequently held a sentence hearing in which it recorded the mitigation of the parties. 3. Ms Musyimi, learned defence counsel, told the court that the Accused was remorseful and had pleaded guilty in the first instance and saved the Court’s time. That the Accused was a mother of four minor children for whom she was the only caregiver as her husband had abandoned them upon her incarceration. Counsel further submitted that the Accused had no prior criminal record and the family was receptive to her rehabilitation at home if she was granted a non - custodial sentence. She prayed for a lenient and non-custodial sentence. 4. Ms. Rukunga, learned Prosecution counsel submitted that the Prosecution appreciated that the Accused plea bargained in the first instance and saved precious judicial time and that the victim’s family was willing to indulge her. That she was a first offender. Counsel however urged the court to consider that the deceased was a mother who lost her life on witchcraft allegations. She prayed for a deterrent sentence in order to deter others from taking the law into their hands. 5. The Accused addressed the court directly and stated that her children were alone at home and prayed for leniency. 6. The pre-sentence probation report stated that the Accused was raised in a polygamous but stable peasant family. That the Accused’s maternal family was willing to support her rehabilitation if granted a non-custodial sentence. The report stated that the Accused admits that she hit the deceased but that it was the deceased who provoked her by calling her a witch. That the death was not intentional and she was very remorseful and had since learnt valuable lessons in prison 7. The victim impact statement contained in the probation officer’s report states that the deceased’s family was still angered by the Accused’s action and was not willing to reconcile any time soon, and wished for justice to be served for their kin’s death. That the community too was not ready to reintegrate her and wished for a custodial sentence. 8. The purposes of sentencing as set out in the Judiciary Sentencing Guidelines (2014) are:- 9. **Retribution: to punish the offender for his/her criminal conduct in a just manner.** 10. **Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.** 11. **Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.** 12. **Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.** 13. **Community protection: to protect the community by incapacitating the offender.** 14. **Denunciation: to communicate the community’s condemnation of the criminal conduct.** 15. A basic principle in sentencing is that sentences should be proportionate to the offence. This was aptly stated in **Hoare Vs. The Queen (1989) 167 CLR 348),** as follows:- **“ A basic principle in sentencing law is that a sentence of imprisonment imposed by the court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.”** 1. In **Thomas Mwambu Wenyi Vs Republic (2017) eKLR,** the Court of Appeal cited the decision of the supreme court of India in **Alister Anthony Pereira Vs State of Mahareshtra** at paragraph 70-71 where the court aptly summarized the objectives and principles of sentencing in the following words:- “***Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurispendence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”*** 1. The Accused was given a chance to mitigate before sentence. The importance of mitigation was underscored by the Supreme Court in **Francis Karioko Muruatetu and Another, Supreme court petition no. 15 of 2015 (2017) eKLR thus:-** **“ *It is during mitigation, after conviction and before sentencing, that the offender’s version of events may be heavy with pathos necessitating the court to consider an aspect that may have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness.”*** 1. I have considered the Accused’s mitigation against the purposes of sentencing set out above. I have also considered that she was willing to plea bargain at the earliest opportunity and so saved precious judicial time. I have also given due consideration to the fact that she was a first offender and had minor children who were dependent on her as a single parent, her husband having deserted the family. 2. The role of the court however is to balance the scales of justice. In this case, I have considered the circumstances of the case being that the cruel hitting of the deceased on her head was caused by an altercation and insinuations of witchcraft. The Accused’s response was disproportionate and led to the loss of life and loss of the only care giver to the deceased’s children. I find that a non-custodial sentence is not appropriate in the circumstances of this case. 3. Section 205 the Penal Code provides:- ***“Any person who commits the felony of manslaughter is liable to imprisonment for life.”*** 1. I have also considered that though the Accused was granted bond upon plea, she has been in pre-trial custody since her arrest, a period of 15 months and which period I have discounted from the final sentence. 2. The Accused is sentenced to serve 10 years’ imprisonment. The sentence is deemed to run from 3rd February, 2025, being the date of arrest and arraignment in court. 3. The Accused, having plea bargained, has 14 days’ Right of appeal against sentence only. Orders accordingly. **Sentence delivered, dated and signed at Chuka this 25th day of May, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **In the presence of Accused; Ms. Musyimi for the Accused; MS. Rukunga for the State; Muriuki (Court Assistant)**