[2023] KEHC 23439 (KLR)

Republic v Kongo (Criminal Case E025 of 2021) [2023] KEHC 23439 (KLR) (11 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23439 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case E025 of 2021

RM Mwongo, J

October 11, 2023

Between

Republic

Prosecution

and

Peter Kamau Kongo

Accused

Judgment

1. The Accused was charged with the murder of his son, Allan Njiru Kamau, on April 28, 2021. When first brought to court on April 27, 2021, his plea could not be taken as his counsel was not present. On July 17, 2018 he pleaded not guilty to the offence.

2. On June 30, 2022 the defence proposed a Plea Bargain Agreement (PBA), and the court consented to negotiations on the proposal. On May 30, 2023, the parties availed the signed the PBA pursuant to section 137A (i) and 137B of the Criminal Procedure Code.

3. The Court was satisfied that the accused understood his rights and the contents of the PBA and that he had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion. Accordingly, the PBA dated May 30, 2023 was adopted by the court pursuant to section 137G of the Criminal Procedure Code.

4. The brief facts of the case, as agreed in the PBA, are that on April 11, 2021, at about 2. 00 pm the deceased instructed three men to assist him cut down some of his trees. Some of the trees fell from his side of land to his father’s land destroying bananas. At 5. 00 pm the accused arrived home looking drunk. He became infuriated due the destruction of his bananas. He began quarrelling when told that the deceased had been cutting his trees which fell across his border. They began to fight and the accused quickly picked a wooden stick and hit the deceased on the head. He fell down unconscious and was laid on his bed for the rest of the night.

5. On April 12, 2021, the deceased was found dead in the house where they laid him. The police took his body to the mortuary. The post-mortem report dated April 16, 2021 indicates that he died due to severe head injury caused by blunt force.

6. On the basis of the plea. the court, on May 30, 2023, thereby convicted the accused with the offence of manslaughter contrary to section 202 as read with section 205. The Pre-Sentence Probation Report had been filed hence the matter proceeded for Mitigation.

7. The defence counsel made the following submissions on mitigation. He submitted that the deceased was the son of the accused. It was a self-defense case as the accused is old. The accused’s wife has forgiven him and so has the community. He has been in custody since 2021 and is not in good health as he is 76 years old. Further, the probation report is favourable. They prayed for a non-custodial sentence.

8. The prosecution submitted that the deceased died due to severe head injury. Hence, sentence should be prohibitive despite the age of the accused and recommendations by the Pre-Sentence Probation Report. He prayed for a custodial sentence of 5 years.

Determination 9. The Probation Report indicates that the accused is 76 years of age. He is the first born of the family and has six siblings. Two siblings are deceased while the remaining are peasant farmers. The accused is married to Faith Nyawira and have three children. The accused dropped out of school at class 7 due to poverty survives by peasant farming on one-acre piece of land inherited from his parents. His wife and relatives have been offering him all the necessary social psycho support during his period at the remand prison. The family is of poor economic means.

10. The Report also notes that 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. He has a supportive family that is willing to assist him reintegrate to the community. The victim is the accused’s son and he raised along with his other siblings. He was not married and did not have children. He has made peace with his family members.

11. The Probation Report recommended the accused for a non-custodial sentence and community service order to serve at Kabare Health Centre.

12. 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”

13. The section provides for the maximum sentence that is life imprisonment; this court has taken into consideration the aggravating circumstances in that the convict murdered the victim by hitting him on the head with a blunt object.

14. The supreme Court decision in the case of Francis Karioko Muruatetu &another v Republic[2017] eKLR indicted that the following mitigating circumstances to be considered before sentencing:“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.”

15. Taking into consideration the above sentencing guidelines, the offender’s mitigation and the Probation Report that recommended for a non-custodial sentence, the accused satisfies the criteria for a reduced sentence from the maximum life imprisonment.

16. The offender was remanded into custody in April 2021, and although granted bail on December 8, 2021, there is no indication that he left remand custody. He has therefore been incarcerated for 2 years and 4 months since April 2021. The court has also taken this into account. His age of 76 years has also been taken into account.

17. The Court hereby sentences the accused to 12 years imprisonment, which sentence shall be served in the following manner:a.The court takes into account that the accused is entitled to remission of 1/3rd of his term under the Prisons Act. That would leave a term of 7 years and 9 months, of which he has served 2 years and 5 months leaving an unserved balance of 5 years and 4 months.b.The accused shall serve a custodial sentence of one year and 4 months with effect from the date hereof, leaving a balance of 4 years.c.The Accused shall serve three (3) years of the remaining period as a non-custodial sentence during which he shall serve community service at Kabare Health Centre under supervision of the Probation Officer;d.The final one (1) year of his sentence shall stand suspended provided that the accused shall not fall afoul of the law and be convicted of any offence during any period from the date hereof.

18. Orders accordingly

DATED AT KERUGOYA THIS 11TH DAY OF OCTOBER 2023R MWONGOJUDGEDelivered in the presence of:Mwangi for the AccusedMamba for the StatePeter Kamau Kongo Accused in personA. Murage - Court Assistant