[2024] KEHC 16371 (KLR)

Republic v Mambo (Criminal Case E008 of 2023) [2024] KEHC 16371 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEHC 16371 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case E008 of 2023

RM Mwongo, J

December 19, 2024

Between

Republic

Prosecutor

and

Julius Gichobi Mambo

Accused

Judgment

1. Charge: The accused person is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are as contained in the Information dated 18th July, 2023 held in the file. Initially, the accused pleaded not guilty to the offence.

2. PBA: However, a Plea-Bargaining Agreement (PBA) dated 30th October, 2024 signed by the accused under the advice and counsel of the Defence Counsel and by the State Counsel for the DPP, was subsequently availed in Court on 30th October, 2024 together with the Court Form for Recording of a Plea Agreement dated 30th October, 2024.

3. In addition, attached to the PBA is the Post Mortem Report of the deceased dated 3rd July, 2023.

4. The Court was satisfied that the accused had and has full capacity and competence to enter into the PBA; that he fully understood and understands its content and that he entered into and signed the PBA voluntarily.

5. Further, the Court was satisfied that the accused person on being taken, on oath, through his/her rights envisaged in section 137F of the Criminal Procedure Code (CPC) he on oath answered Yes, confirming he understood his rights.

6. Accordingly, on 30th October, 2024 this Court recorded the PBA pursuant to Sec 137 CPC. The Plea Agreement was thus adopted as part of the court record.

7. Accordingly, the accused person was convicted with the offence of Manslaughter contrary to Section 202 of the Penal Code.

8. Under Section 205 of the Penal Code the punishment for Manslaughter renders the accused liable for imprisonment for life.

9. Mitigation: Directions on Mitigation having been given by the Court, and the Accused’s mitigation having been filed and availed in writing, the Court has taken the same into consideration.

10. The Probation Officer’s Pre-Sentence Report (POR): Dated 29th October, 2024 has also been availed.

11. The POR highlights are as follows: The accused is 44 years old. He dropped out from school after class 8 due to poverty. He engaged in mixed farming to feed his school going children. He had married Pauline Njeri and they got 3 children. They separated due to domestic problems in 2014. In 2019, he married one Ann Njoki, a mother of 3 children who lives with her parents. He committed the offence after returning to his home from Nairobi and found his wife had sold cereals without his consent. She confronted him while drunk and they had a heated argument. She later went to sleep in the kitchen. At around 4 am, he checked on her and found her dead. His attitude towards the offence is that he admits and regrets his actions that led to loss of life which were not premeditated. He is remorseful and prays for leniency.

12. In particular, the Victim’s family position is as follows: The victim was 41 years, had three children who are orphans and depend on their elderly grandfather for upkeep. Her eldest son dropped out of school due to lack of school fees. Though, she occasionally abused alcohol, they believe that his action contributed to her death and prays that he be punished. The victim and the offender’s families are not in communication.

13. The POR concludes and recommends as follows: the offender has no prior criminal record and relates well with the community. He has three children who are under the custody of their mother and his supports them through farming. He has good family support system that will help him in rehabilitation. It recommends that the offender is suitable for a non-custodial sentence and he may be placed under a community service order to work at Gichonjo Primary School.

14. The Court has taken into account the Judiciary Sentencing Policy Guidelines as amended and supplemented by the guidelines given by the Supreme Court in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR.

15. The Court has also taken into account the holding in the case of Julius Kitsao Manyeso v R [2020] eKLR where the Court of Appeal held that a life sentence is indeterminate and unconstitutional as it constitutes an unjustifiable discrimination and is unfair and repugnant to the principle of equality before the law. As such the said sentence cannot be meted.

16. The Court notes the Factual basis of the plea as contained in the PBA, which is as follows:On the 2nd July, 2023 at about 2030 hrs, the accused returned home from Nairobi where he had gone to visit his brother’s daughter who had delivered. Upon reaching his gate he noticed a boda boda rider but they did not talk. He walked straight to the house where he met the deceased packing her clothes and other personal belongings. He noticed that his one and half bag of beans was missing from the store. He asked the deceased where it was and she said that she had distributed to her friends. This infuriated the accused, and a fight broke out between the two. They headed to the kitchen as the accused overwhelmed the deceased by pushing her down. He caned her with a stick before retreating back to the house where he kept an eye on her as she laid down near the kitchen. He noticed that she could not move and had turned cold. On noticing that she was dead, he rushed to Kiamutugu Police Station and reported the episode.A Post-mortem conducted on the body of deceased revealed that the cause of death was severe head injury following assault with a heavy blunt object.

17. The Court notes from the information supplied by the DPP that no information is available on the accused past criminal record. The state proposes a sentence of 10 years.

18. Time spent in prison: The Court has also taken into account the time spent in prison by the accused, being 1 year since 18th July, 2023.

19. The Court fixed judgment for 28th November 2024. On that day Paul Irungu - the Victim’s father - stood up and addressed the Court. He stated that he is in custody of the children and demanded that the Court should look into how the Court could ensure the deceased’s children are supported. He sought that there should be compensation for the deceased that would enable him to cater for the children.

20. Accordingly, the Court arrested the judgment to enable further negotiation between the victim’s father (Paul Irungu) and the accused.

21. On 16th December 2024 victim’s father Paul Irungu and the accused filed a further agreement titled “Deed of Settlement”. It contains specific provisions for compensation. The court has taken this Deed into account.

Disposition 22. Taking into consideration all the above matters, I hereby consider the appropriate sentence to be a custodial sentence. In Republic v Mwangi (Criminal Case E088 of 2023) [2024] KEHC 367 (KLR) (25 January 2024) (Sentence) the State Counsel recommended that the Accused be sentenced to 10 years’ imprisonment for reasons that the accused knew the knife could cause severe injury to the deceased.

23. The court hereby sentences the accused to 8 years imprisonment.

24. In addition, the accused shall pay compensation of Kenya Shillings One Million Six Hundred and Fifty Thousand (Kshs.1,650,000/=) within a period of two (2) years from the date hereof.

25. The said payment shall be made through this Court.

26. After the date of full payment of the aforesaid amount, the remaining term of the Accused’s sentence shall be treated as follows:a.The Two (2) years of the Accused’s remaining sentence shall be served as a non-custodial sentence with the accused performing community service at a place and in a programme determined and facilitated by the County Probation Officer, Kirinyaga.b.Any remaining term of the sentence thereafter shall stand discharged.

27. Orders accordingly.

DATED AT KERUGOYA THIS 19THDAY OF DECEMBER, 2024____________R. MWONGOJUDGEDelivered in the presence of:Before Hon. Justice R. MwongoCourt Assistant: Mr. MurageState Counsel: Mr. MambaDefence Counsel: Mr. MakhandiaAccused: Present