[2023] KEHC 26758 (KLR)

Republic v Khasia (Criminal Case 57 of 2020) [2023] KEHC 26758 (KLR) (15 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26758 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 57 of 2020

DK Kemei, J

December 15, 2023

Between

Republic

Prosecutor

and

Costas Shiunza Khasia

Accused

Ruling

1. The accused herein Costas Shiunza Khasia, vide the Judgement of this court dated 27. 10. 2023, was found guilty and convicted for the murder of Gifty Indangasi.

2. During the sentence hearing conducted on 30. 11. 2013, Mr. Mechi for the accused submitted that the accused is remorseful for the offence and that he is a first offender. Counsel urged this court to give him a second chance to make amends over the loss of his son. It was further submitted that the accused has been in custody for four years and has had time to reflect and now seeks an opportunity to turn a leaf and join his family.

3. Miss Mwaniki for the prosecutor submitted that the accused is not remorseful as he still insists that it was an accident and that he does not accept any wrongdoing. It was submitted that there are aggravating circumstances as he killed his own child by burning him inside the house and that the child was helpless and expected protection from the accused. Counsel urged this court to give a custodial rehabilitation which will deter him from such offences and also to act as a deterrent to other members of the society.

4. A pre – sentence report was filed by the County Probation officer Bungoma. It is dated 12. 11. 2023. The report indicated that his family is still very hostile to him and that they have banned him from the area and further have made arrangements to sell his land in the area and relocate him elsewhere. It is also indicated that the accused’s wife has since moved on and entered into another relationship and wants to have nothing with the accused. The report further reveals that the accused has no community ties and that his family members have banished him from their midst as he is now an outcast.

5. I have considered the mitigation presented on behalf of the accused as well as the response by the prosecution’s counsel. I have also considered the pre- sentence report. Under section 204 of the Penal Code, the punishment for murder is a sentence of death. However, following the decision of the Supreme Court in Francis Karioko Muruatetu & 2 Others -VS R ( 2017) eKLR, the mandatory nature of death sentence was declared unconstitutional and that courts should receive mitigation circumstances from the offender before imposing an appropriate sentence thereafter. The court could still pass a sentence of death if the circumstances warrant it.

6. The circumstances leading to the death of the deceased are rather tragic. The accused used petrol to set the house on fire while the deceased was inside the house and that he locked the door form outside and fled the scene. The deceased who was then young was overwhelmed with the fire and could not manage to come out as the accused had locked the door from outside. The neighbours managed to break open the door and rescued the deceased from the burning house and rushed him to hospital but who later succumbed to the injuries. The Pathologist Dr Wekesa Nalianya (PW9) stated that the deceased sustained 55% degree burns and formed the opinion that the cause of death was severe anaemia due to burns. As the accused had been living with the deceased after his wife left for her parents’ home, it was incumbent upon him to be the protector of the deceased. It seems to me that the accused decided to kill the deceased following his differences with his wife. This was quite unfortunate as the deceased who was vulnerable looked up to him as his father and protector. The accused should not have killed his innocent child as a revenge against his wife who had deserted him. It is clear that the deceased died a very painful death. Had the accused resorted to involving his family members and his in-laws or the local administration over his differences with his wife, the accused could be alive today. He did not deserve to die over maters not related to him.

7. Defence counsel has implored this court to be lenient to the accused as he has been in custody for four years and has had time to reflect on the incident. It is instructive that the accused is still in denial and maintains that the fire incident was accidental. This then implies that he is not remorseful over what he did. The Court of Appeal in Charo Ngumbao Gugudu -vs Republic (2011) eKLR held as follows: -“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blame-worthiness of the offender and that it is not proper for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani -vs- Republic (1990) eKLR.”From the post mortem report and the accounts of the witnesses who reached the scene immediately, it is clear that the deceased died a very painful death. One wonders why the accused would plot to kill his own innocent son just because of differences between him and his wife. The death of the deceased was not warranted in the circumstances. I find the circumstances of the offence herein requires custodial rehabilitation.

8. It is noted that the accused has been in custody since the time of his arrest to date. This period will be taken into consideration. The custodial rehabilitation will benefit the accused even though he still has a long life ahead. The custodial rehabilitation will help to mould him into a better person before being released back to the society.

9. In the result, I order Costas Shiunza Khasia to serve a sentence of forty (40) years imprisonment which shall commence from the date of arrest namely 22. 9.2022.

DATED AND DELIVERED AT BUNGOMA THIS 15TH DAY OF DECEMBER, 2023. D. KEMEI,JUDGE.In the presence of :-Costas Shiunza Khasia AccusedMechi for accusedMwaniki for prosecutionKizito Court Assistant