[2022] KEHC 16489 (KLR)

Republic v Kisaka (Criminal Case E027 of 2021) [2022] KEHC 16489 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16489 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E027 of 2021

DK Kemei, J

November 11, 2022

Between

Republic

Prosecution

and

Selina Kisaka

Accused

Ruling

1. Selina Kisaka had initially been charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code with the particulars being that on the July 24, 2021 at around 2030 hours at Lutaso village within Kabuchai subcounty in Bungoma Count she murdered Christine Nasambu Wanajala alias Miriam Nabiswa.

2. The charge against the accused herein was later reduced to one of manslaughter following a plea bargain agreement dated April 20, 2022. The court duly entered a plea of guilty to the said charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code upon the accused’s own unequivocal plea of guilty to the said charge after the court accepted the plea agreement pursuant to section 137H of the Criminal Procedure Code. This was after the court was satisfied on the factual basis of the plea agreement and that the accused was competent of sound mind and had acted voluntarily in accordance with section 137G of the Criminal Procedure Code at the time of the agreement.

3. A fresh charge was prepared by the DPP as follows: Selina Kisaka, hereinafter referred to the accused is charged with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The particulars of the charge are tht on the July 24, 2021 at around 2030 hours at Lutaso village within Kabuchai sub county in Bungoma county she unlawfully caused the death of Christine Nasambu Wanjala alias Miriam Nabiswa.

4. The facts in support of the charge as disclosed in the plea agreement dated April 20, 2022 were that on the July 24th, 2021 at Lutaso village within Kabuchai sub-location in Bungoma county at around 7. 00 p.m. the deceased herein Christine Nasambu Wanjal alias Miriam Nabiswa was at home with her children. Shortly thereafter, one Naomi Khatandi who was her neighbour came and entered her house and grabbed a mobile phone that she (deceased) was using and went away. The deceased pursued the said Naomi Khatandi upto the accused’s house as she used to live with the accused. However, the deceased did not find the said Naomi Khatandi but the accused herein. The deceased sat down and served herself some tea. This appeared to have angered the accused who enquired from her whether she would pay for the tea. In response, the deceased poured the tea in anger and claimed that she was in a position to pay for the tea. The two started to argue over money with the deceased claiming that the accused owed her kshs 5,000/-. They continued to exchange insults with the deceased questioning about the paternity of a pregnancy that the accused carried. This angered the accused who was then cutting vegetables and who used the knife to stab the deceased on the chest. The accused then removed the knife and ran away and while on the way she threw away the knife and went to Chwele police station where she lodged a report. Later the accused led the police to where she had thrown the knife and which was recovered and kept as an exhibit. The accused then escorted the police to the scene of crime where they found the body of the deceased lying outside accused’s house. The scene was processed and accused taken into custody. The body was taken to Bungoma County Referral Hospital for post mortem. The cause of death was established to be cardio pulmonary arrest consistent with haemothorax with cardiac injury which was caused by a penetrating chest injury due to a stab wound. The accused was later subjected to a mental examination and was found to be fit to stand trial. She was later charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code which has now been reduced to manslaughter contrary to section 202 as read with section 205 of the Penal Code. The post mortem report dated August 27, 2021 was produced as exhibit while the kitchen knife with a blue handle was produced as exhibit 2. The accused herein has knowingly, voluntarily and truthfully admitted the facts contained herein. She was duly convicted on her own unequivocal plea of guilty.

5. During the sentence hearing, Miss Mukangu for the prosecution submitted that the state is not opposed to the grant of a lenient sentence since pursuant to the plea agreement the same has saved the time for proceedings. However, she submitted that the accused’s action caused the death of the deceased which took place in the presence of children. It was the view of learned counsel that the accused needs to be rehabilitated so as to sort out her anger issues. She finally prayed for a lenient custodial sentence in the matter.

6. Miss Nekesa for the defence submitted that the accused is a first offender and is remorseful. Learned counsel sought for a lenient sentence and pointed out that the circumstances leading to the incident was accidental. It was further submitted that a noncustodial sentence is suitable so as to enable the accused to cater for her children as she is the sole breadwinner and that one of the youngest children was born while the accused was in remand custody. Finally, it was submitted that the accused has been in custody for the past year and that she has reformed.

7. This court called for a pre-sentence report. The same is dated November 1, 2022. The same indicates that both the accused and deceased had been friends with whom they ran their groceries at Chwele market and drank alcohol together until the unfortunate incident. It also indicated that the accused lost her cool when the deceased even after pouring tea in her (accused’s) house went ahead to discredit the paternity of a pregnancy that the accused was then carrying. It is also reported that the local administration and community consider the incident as unintended and that the accused should be given a chance to serve a supervised non-custodial sanction since there is no hostility on the ground. It also indicted that the family of the accused are willing to offer her accommodation and arrest her and further ready to reach out to the family of the deceased for reconciliation. Finally, it was the view of the probation department that the accused is suitable for a non-custodial sentence where she can be assisted through counselling on anger management and that her children and the one born while accused was in custody will benefit immensely as they will all be able to rejoin as a family and forge ahead.

8. I have considered the submissions of both learned counsels as well as the presentence report filed herein. Under section 205 of the Penal Code, manslaughter is punishable by a maximum sentence of life in prison. Howe, this represents the maximum sentence which is usually reserved for the worst of such cases. This does not appear to fall int eh category of the most heinous examples of manslaughter as regards the circumstances of the accused herein. According to the pre-sentence report, the circumstances leading to the death of the deceased were quite tragic and unintended since both accused and deceased had been long time acquaintances and confidants who did business together and shared social life a great deal. As a result, I have ruled out life imprisonment for the accused herein.

9. Case law could be the starting point in determining a custody sentence for manslaughter since the judiciary sentencing policy guidelines are silent on the path to take in manslaughter instances. Currently, the said sentencing policy guidelines are being reworked with a view to having them anchored into law. In the case of VMK v R [2015] Eklr ten years imprisonment was given for manslaughter. When a dangerous weapon is used in the commission of the crime courts are more likely to sentence the offender to life in prison. However, the circumstance of each must be taken into consideration. For instance, in the case of R v Daniel Okello Rapuch [2017] eKLR a sentence of 12 months imprisonment was meted out on a man who killed another on allegation of being involved in an illicit love affair with his girl friend. The facts in the present case is that the deceased and accused had been great acquantances and business colleagues as well as social mates until the date of the incident. It transpired that the deceased who had visited the accused’s house to pick her mobile phone sim crd that had been taken away by the accused’s niece went too far in haranguing the accused by pouring it onto the ground and then insinuating that the paternity of the pregnancy that the accused was then carrying was doubtful. It seams the actions and comments by the deceased irked the accused who apparently got hot under the collar and used a knife with which she was cutting vegetables to stab the deceased on the chest and rushed to the police at Chwele where she lodged a report. The accused is now seeking for leniency from this court for what she did. In the case of Charo Ngumbao Gududu v R [2011] eKLR the Court of Appeal observed 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 thus not proper exercise of discretion in sentencing, for the court to fall to look at the facts and circmustances of the case in their entirety before setting for any given sentence – See Ambani v R [1990] Eklr 161. ”

10. From the post mortem report produced as an exhibit the injuries inflicted on the deceased composed of massive night sided hemothorax with lung collapse, injury to the upper lobe due to penetrating chest injury due to stab l wound and massive pericardial hemorrhage with injury to the vena cava and upper chamber. Indeed, from the land injuries, the deceased succumbed to death a few minutes since as soon as the police escorted the accused back to her house, they found the lifeless body of the deceased outside the accused’s house. The injuries inflicted by the kitchen knife which was produced herein as an exhibit were quite severe: The circumstances leading to the death appear rather tragic because both the deceased and accused had been great buddies prior to the incident and that they had engaged in some banter laced with some taunts before the accused felt that the insult aimed at questioning the paternity of a pregnancy she was then carrying, was a hit below the belt. She then lost her cool and hinged at the deceased by stabbing her with a kitchen knife she was then using to cut vegetables. It is instructive that the incident took place at the home of the accused which implies that the deceased had taken the war to the accused’s doorstep. Indeed, for the facts and pre-sentence report it was the deceased’s conduct which provoked the accused to react in the manner she did. However, the provocation was just an exchange of words and nothing more. The deceased had not come while armed with any weapon so as to justify the accused to resort to the use of a knife which is a dangerous weapon. There is no evidence that the accused’s life was in danger. Hence, the conduct of the accused in resorting to the use of a knife in response to some alleged insults was met called for at ll. Had she restrained herself and controlled her emotions, the deceased would be alive today. The killing of the deceased was unwarranted in the circumstances. The accused could even have proceeded to the nearby police station to report on the conduct of the deceased in going to her place and harassing, insulting her. She should not have taken the law unto her hands. The accused has to live with the quilt of having killed her bosom friend.

11. According to the probation officer vide his report dated November 1, 2022, the accused is a single mother of four children having separated with her husband and that the child she has in custody is a product of her last relationship which she delivered while in remand custody. Both the deceased and accused had been long time acquaintances and confidants and also carried business together as well as drinking buddies. The report reveals that there had been no grudges between then and that the deceased is reported to have been drunk at the time and that her insults made the accused to loss her composure and who overreacted leading to the death of the deceased, it is reported that the community is receptive to her and that the local administration has confirmed that there is calmness in the area and has assured that the offender will be safe in the community. It is also reported that the accused’s family is ready to offer her accommodation and assist her children and the one born while she was in custody will have an opportunity to bond together as she undergoes psychosocial support.

12. It is noted that the accused has been in custody for a period of one year and that it is believed that she has learnt one or two lessons and has somewhat afforced for her sins. I find that a non-custodial sentence is suitable in the circumstances so as to enable the accused to undergo the requisite psychosocial rehabilitation and to enable her send for her children. The accused is remorseful and regrets the incident. It is hoped that the rehabilitation will yield in her a better person and able to rein her emotions.

13. In the result, the accused herein Selina Kisaka is hereby ordered to serve under probation for a period of three years and that while under probation she is ordered to adhere to the terms of the probation failing which she shall be apprehended and to serve custodial sentence for the entire period regardless of any period spent under probation.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 11TH DAY OF NOVEMBER, 2022. D. KEMEIJUDGEIN THE PRESENCE OF:Selina Kisaka AccusedMiss Komora for Nekesa for AccusedM/s. Mukanga for ProsecutorKizito Court Assistant