[2022] KEHC 14722 (KLR)

Republic v Majani & 3 others (Criminal Case E041 of 2021) [2022] KEHC 14722 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14722 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E041 of 2021

DK Kemei, J

November 3, 2022

Between

Republic

Prosecutor

and

Joseph Majani

1st Accused

Daniel Munialo

2nd Accused

Evans Khaemba

3rd Accused

Beatrice Nanjala

4th Accused

Ruling

1. Joseph Majani, Daniel Munialo, Evans Khaemba and Beatrice Nanjala hereinafter referred to as the accused persons were charged before this court with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63 of the Laws of Kenya). The particulars of the charge are that on unknown date between 3rd January, 2016 and 9th January 2016 in Musembe sub-location in Bungoma North sub-county within Bungoma County jointly with another not before court murdered Patrick Mukhwana (hereinafter referred to as the deceased).

2. All the four accused persons pleaded not guilty to the charge. The 1st accused is represented by Mr Mechi while the 2nd, 3rd and 4th accused persons are represented by Mr. Wamalwa Simiyu. The prosecution is conducted by Ms Mukangu.

3. The charges against the first accused herein Joseph Majani was eventually reduced to manslaughter following a plea bargain agreement dated 7th March, 2022 and filed on 9th March, 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 Cap 63, upon the 1st accused person’s own plea of guilty to 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 of the factual basis of the plea agreement and that the 1st accused person 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.

4. A fresh charge was prepared by the DPP as follows, Joseph Majani, hereinafter referred to as the accused was charged before this court with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code (Cap 63 of the Laws of Kenya). The particulars of the charge are that on unknown date between 3rd January, 2016 and 9th January 2016 in Musembe sub-location in Bungoma North sub-county within Bungoma County jointly with others before court unlawfully caused the death of Patrick Mukhwana (hereinafter referred to as the deceased).1. The facts were that, in the month of July, 2015 at Lunyu Location within Bungoma County, the 1st accused herein, Joseph Majani attended a meeting between himself, his mother, Beatrice Mukwana and his elder brothers David Khaemba, Evans Khaemba and Job Simiyu. The meeting was to deliberate on the ways and means of killing of their father, Patrick Mukhwana (the deceased). It was agreed that a cow was to be sold for Kshs. 30,000/= and the money to be given to a witch doctor but however, the witch doctor did not deliver the desired results as their father did not die as anticipated. Another meeting was held in the beginning of January 2016 to again discuss the killing of the deceased as there was a pending sale of sugarcane and that the 1st accused’s family was apprehensive that the money will be given to their stepmother. At around 9. 00pm, the 1st accused’s mother left him and his brothers in her kitchen together with the deceased. The only source of light was the lit fire and that at the time the deceased sat near the kitchen door. The 2nd accused, Daniel Munialo who is the eldest wrestled the deceased and who fell outside the door hitting his head on the ground. The 3rd accused, Evans Khaemba proceeded to strangle the deceased’s neck while the 1st accused and one Job Simiyu pinned the deceased to the ground while the 2nd accused, Daniel Munialo brought a big stick and used it to hold the deceased’s neck against the ground strangling him to death. His brothers then took the deceased’s body and dumped it at Kibisi river and that the 4th accused herein who is his mother promised him Kshs. 200,000/= for his silence. The body was finally recovered at Kibisi River and taken to Kiminini Cottage Hospital mortuary where a post mortem was conducted and the cause of death established to be strangulation. Investigations were commenced but they went cold due to lack of leads. The accused herein relocated to Eldoret. On 3rd December, 2021 at 9. 30 am the accused proceeded to Lunyu Police Station together with his brothers, mother and other relatives whereupon he confessed to on how the murder of the deceased had been planned and executed. This prompted his arrest and that of his two brothers. He was subsequently subjected to a mental assessment which found him to be mentally fit to plead to the charges. He was later charged with the offence of murder which was later substituted with a charge of manslaughter. The post mortem report conducted on the body of the deceased dated 11th January, 2016 was produced as Pexh 1. 2.This court proceeded to enter a plea of guilty and convicted the 1st accused herein, Joseph Majani, on his own unequivocal plea of guilt.3. In terms of section 202 as read with section 205 of the Penal Code, the accused, upon being convicted, is subject to serve life imprisonment.4. Ms. Mukangu, learned counsel for the prosecution argued in her sentencing oral submissions that the state is requesting the court to grant a lenient sentence since the accused has duly entered into a plea agreement and that he is wishing to be a state witness. She pointed out the fact that the accused is the one who revived the matter after five years. She sought for a custodial sentence which is needed for him in order have the much needed psycho-social assistance. Mr. Mechi for the accused contended that the accused is a first-time offender who is remorseful. He pointed out the fact that the accused did confess willingly out of his own volition and that he is willing to be a state witness to ensure justice is served in the society. It was submitted that the accused is a family man with young children who depend on him for support. Learned counsel sought for a non- custodial sentence which will enable the probation officers to offer the required psychosocial support.5. On record is a pre-sentence report dated 25th May, 2022 that indicates that the 1st accused is the lastborn son to the deceased and that his father was a polygamous man. The convict’s mother was the first wife and that the deceased on 3rd January, 2016 called for a family meeting with the agenda not known. The said meeting did not materialize as the deceased went missing and that the same was postponed. On investigations, it was established that the deceased had not been to his second home for two days. After unfruitful searches, they received a report from the area assistant chief that a certain body had been recovered in a nearby Kibisi River and which was positively identified as that of the deceased. Few days later the 1st accused was reported to have displayed weird behaviour and further threatened to reveal some secret but efforts to have him do the same proved futile. In 2021, the convict reached out to his uncle and confided in him that he wished to convene a family meeting for purposes of making a confession. He requested that security agencies be present. During the meeting, the convict confessed to killing the deceased in the company of his two brothers and his mother. He gave an elaborate account of how the four had planned and executed the heinous crime and that the same had been motivated by the selfish desire to unlawfully claim their inheritance from the deceased, whom they found to be uncooperative. It also indicated that the family and the community had a positive attitude towards him and indicated that they are not opposed to a non-custodial court sanctions and that they are willing to assist him resettle. It was reported that the convict had no criminal record.6. Under section 205 of the Penal Code, manslaughter is punishable by a maximum sentence of life in prison. This is, however, the maximum penalty that is normally reserved for the most serious of such situations. This does not, in my opinion, fall into the category of the most heinous examples of manslaughter. The state has stated that the accused is a first-time offender and that they intend to call him as a witness against his co-accused pursuant to a plea bargain agreement. As a result, I've ruled out life imprisonment.7. Case law would be the starting point in determining a custodial sentence for manslaughter offenses because the Judiciary Sentencing Policy Guidelines are silent on the path to take in manslaughter instances. In VMK v Republic [2015] eKLR ten years in jail was given for manslaughter. When a dangerous weapon was used in the commission of the crime, courts are more likely to sentence the offender to life in prison. There is no proof that the accused utilized such a weapon in this case. I have noted that the convict pleaded guilty and where a judge takes a plea of guilty into account, it is important that the convict says he or she has done so as noted in the case of R v. Fearon [1996] 2 Cr. App. In this case therefore I have taken into account the fact that the convict readily pleaded guilty, as one of the factors mitigating his sentence and his willingness to assist the state with its case against the 2nd, 3rd and 4th accused persons as a state witness. Further, the English practice of a reduction of one third has been held to be an appropriate discount as held in the case of R v Buffrey [1993] 14 Cr App R (S) 511 where the Court of Appeal in England indicated that while there was no absolute rule as to what the discount should be, as general guidance the court believed that something of the order of one-third would be an appropriate discount.8. In the case of Republic v Daniel Okello Rapuch [2017] eKLR, a sentence of 12 months imprisonment was meted out on a man who killed another on the allegation of being involved in an illicit love affair with his girlfriend. The facts revealed that the 1st accused and deceased had a great relationship, and that on the material date, the deceased was in the kitchen with the 1st accused and it was his elder brothers who proceeded to assault him and strangle him to his death. They proceeded to dump his body at Kibisi river and his mother promising him money was a way to buy his silence and cooperation over what happened. On his own volition the 1st accused was able to made a tremendous confession behind the deceased death which led to his body being recoverered at Kibisi river. In light of aggravating factors, I have adopted a starting point of two years’ imprisonment. I am alive to the fact that the circumstances herein appear to have turned tragic to the family which was rather unfortunate. It would appear to me that the 1st accused is overzealous in trying to ensure justice is served and the killers of the deceased to face the law. Indeed, the life of an innocent man was cut short as a result of the selfish and covetous behaviour of his 1st family. It is noted that the 1st accused took about a period of about five years before he let the cat out. Even though his conduct in making the confession may be applauded, the fact remains that he participated in the killing of their father in the cruellest and horrendous manner. The accused herein accepted to keep the incident under wraps after his mother who is the 4th accused silenced him with a sum of Kshs 200,000/. It is instructive that the accused herein relocated to Eldoret. Had he acted with restrain and wisdom such as raising alarm, the deceased would properly be alive today. The deceased cannot be brought back to life thanks to the greed of the accused herein and his brothers and mother. Even though the pre-sentence report seems to be in favour of a non- custodial sentence, the accused still requires some psychosocial rehabilitation. The pre-sentence report indicates that the community is willing to accept him back and that the family will arrange alternative accommodation so as to secure his safety now that he is a key witness for the state against his co-accused. The report further recommends that the accused should be placed under witness protection. It is not in doubt that there is a possibility of a reprisal from the accused’s siblings and mother who are in custody and against whom the accused is set to testify pursuant to the plea agreement. Learned counsel for the prosecution has pitched for a lenient custodial sentence. If a custodial sentence is meted, it would mean that the accused will still share the custodial facilities with his co-accused and which will make him vulnerable after having testified for the prosecution. Indeed, the pre-sentence report indicates that the safety of the accused is not guaranteed as there is a likelihood of threats from the rest of the accused and that the probation officer has proposed that the accused should be placed under witness protection. Looking at the circumstances as well as the pre-sentence report, iam of the opinion that a non-custodial sentence is appropriate. I find a probation period of three years is appropriate so that the accused can undergo psychosocial support. It is noted that the accused has been in custody for a period of almost one year and is believed to have atoned somewhat for his sins. It is hoped that he will live with the guilt of having participated in the death of his own father.9. In the result, the accused herein Joseph Majani is ordered to serve under probation for a period of three years and as he undergoes probation, he is expected to adhere to the terms of the probation and the plea agreement. The prosecution will decide on the appropriateness of the witness protection proposed by the probation officers in their report.

It is so ordered.DATED AND DELIVERED AT BUNGOMA THIS 3RD DAY OF NOVEMBER, 2022. D. KEMEIJUDGEIn the presence of:Joseph Majani AccusedMechi for AccusedMukangu for ProsecutionKizito Court Assistant