[2023] KEHC 24719 (KLR)

Republic v Kariuki (Criminal Case 4 of 2016) [2023] KEHC 24719 (KLR) (1 November 2023) (Sentence)

Neutral citation: [2023] KEHC 24719 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case 4 of 2016

RM Mwongo, J

November 1, 2023

Between

Republic

Prosecution

and

Godfrey Muriithi Kariuki

Accused

Sentence

1. The Accused was charged with the murder of Gibson Karoki on February 29, 2016. Plea taking was delayed for over a year due to the mental status of the accused. After he was found fit to plead, he pleaded not guilty to the offence he on March 20, 2018.

2. The hearing proceeded with six prosecution witnesses, and the accused was found to have a case to answer and put on his defence on 3rd December, 2020. He stated that he would give sworn testimony and avail one witness. He testified as DW1, and it appears from the record that his counsel was unavailable for a period.

3. On 16th November, 2021, the accused asked for the charges to be read to him afresh, as he said he wanted to take his plea afresh. On 14th December, 2021, the defence counsel’s brief was held and she proposed that a plea bargaining agreement negotiation be entered into. The prosecution was amenable.

4. Defence counsel’s absence persisted and on 6th October, 2022 the matter was given a date for Plea Bargain Agreement settlement on 22nd November, 2022. on 30th May, 2023, the accused appointed another advocate to represent him as the state appointed counsel was unable to represent the accused.

5. It was not until 5th June, 2023, that the parties availed to court the signed Plea Agreement pursuant to Section 137A (i) and 137B of the Criminal Procedure Code. According to the Post-mortem report, the circumstances of the death were that the deceased was ambushed by his son who was armed with a panga and inflicted injuries to the deceased. The pathologist determined that the cause of death of the deceased was:“Acute blood loss resulting from multiple injuries to the face and shoulder (left) and arm (left); Injuries inflicted with a sharp object”

6. The Plea Bargain Agreement dated 5th October, 2022 was adopted by the court pursuant to Section 137G of the Criminal Procedure Code. This was after the court had satisfied itself that the accused had understood its contents and that he had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion.

7. On 5th June, 2023, the court convicted the accused for manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The Pre-Sentence Probation Report had been filed hence the matter was set for mitigation.

8. The brief facts of the case are that on 21st September, 2013 at about midnight at Riamugaa village in Kirinyaga West District the victim, the accused’s father, went out of the house for a short call. While still outside, the accused who had been hiding outside the house charged towards his father while armed with a machete. In the process of the ambush, the accused cut his father on the head and neck and disappeared into the thicket. The deceased raised an alarm that alerted his wife who was sleeping, and she came to his rescue. She assisted the deceased back to the house.

9. The deceased’s wife then reported the matter to the police and took her husband to hospital. He was pronounced dead at the hospital. The post-mortem report dated 19th January, 2021 formed the opinion that he died due to acute blood loss resulting from injuries to the face and shoulder inflicted with a sharp object.

10. The defence counsel made the following submissions on mitigation. He submitted that the accused was remorseful and prayed for leniency. He had been in custody for 8 years, had reformed and became a preacher. The deceased was his father. The act was done out of anger and he had sought forgiveness from his mother and the family. All have forgiven him. The Probation Officer’s Report is favourable. They seek for a probation sentence of 3 years.

11. The prosecution submitted that the accused used a machete against the deceased and aimed at his neck resulting in his death. They do not oppose non-custodial sentence subject to the accused being placed on a program for anger management.

12. The only issue for determination is whether the sentence in the Plea Bargain Agreement should be adopted.

Analysis and Determination 13. The Probation Report indicates that the accused is 34 years old. He is the last born of the family and has five siblings. One sibling died in 2017 from illness. His mother is a peasant farmer cum business person within Riamugaa village. His late father had sold one acre of their land resulting in conflict over the sharing of the remaining land.

14. The accused dropped out of school at class 6 due to poverty. He trained as a welder and engaged in casual jobs. He is not married and does not have children. He stated that he had no history of mental sickness and he was in Mathare Mental Hospital for observation only. He killed his father due to prolonged provocation and dispute after the sale of land.

15. According to the Probation report, the accused is not viewed as a threat to the community and is not likely to be harmed by members of the public should he be released. The accused was viewed as a hard working individual who was not involved in any anti-social activities in the area before the incident.

16. The Victim impact statement indicates that the deceased was the accused’s biological father. His brothers and sisters have forgiven him, and as a family, they that the accused be released to go back home to continue assisting their elderly mother. The family is supportive and willing to assist him reintegrate to the community. He has undergone biblical teaching while in custody to enable him live uprightly again.

17. The Probation Report recommended the accused for a non-custodial sentence and recommends a probation order during which he will be assisted to address the areas identified such as anger and conflict management so as to live well with other members of his family and the community.

18. The applicable law on sentence for the offence of manslaughter is found under the provisions of Section 205 of the Penal Code which reads as follows;‘Any person who commits the felony of manslaughter is liable to imprisonment for life’

19. The section provides for the maximum sentence of life imprisonment; this court has taken into consideration the aggravating circumstances in that the convict murdered his father by cutting him on the head with a machete. The court has also taken into account that the accused did not opt for plea bargaining until after the prosecution had completed its case and he was on his defence.

20. The Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR gave guidelines on the mitigating circumstances to be considered before sentencing when it pronounced itself thus:“In sentencing the court will consider mitigating factors such as the following;a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social re-adaptation of the offender;j.Any other factor that the Court considers relevant.

21. Taking into consideration the above sentencing guidelines and the Probation Report that recommends a non-custodial sentence, the accused satisfies the criteria for a reduced sentence from the maximum sentence of life imprisonment.

22. The court also notes that the accused has been in remand custody since his arrest in February, 2016, which is a period of over 7 years and 8 months. This period must also be taken into account in the sentence.

23. In the circumstances, I sentence the accused to imprisonment for a term of 15 years which is reckoned as follows:a.Of that period the accused is entitled to remission under the Prisons Act of 1/3 of his sentence which leaves a balance of a period of ten (10) years.b.The Accused having served 7 years and 8 months in custody, that period is deducted from the remaining sentence term leaving a period of 2 years and four months.c.The said remaining term of the accused’s sentence shall be served as a non-custodial sentence whereby the accused will provide community service at a place to be selected by the Probation Officer. During that period the accused shall also participate in a programme of counselling on anger and conflict management and good neighbourliness. Such progamme shall be designed and facilitated by the Probation Officer.d.Should the accused fall afoul of the law and be convicted of any offence during the period of his non-custodial sentence, or fail to attend or adhere to the Probation Officers directions, the Court may review the sentence and reinstate a custodial sentence.

24. Orders accordingly.

DATED AT KERUGOYA THIS 1ST DAY OF NOVEMBER, 2023R. MWONGOJUDGEDelivered in the presence:Accused - Present in personMakazi for AccusedMaari for StateCourt Assistant, Murage