[2020] KEHC 4257 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CRIMINAL CASE NO. 12 OF 2017

REPUBLIC.................................................PROSECUTOR

VERSUS

MARY NDORO ZIRO.....................................ACCUSED

Coram: Hon. Justice R. Nyakundi

Ms. Sombo for the State

Ms. Ruttoh for the Accused person

SENTENCE

The accused was charged with manslaughter contrary to Section 202(1) as read with Section 205 of the Penal Code Chapter 63 of the Laws of Kenya. The allegation is that the offender unlawfully and unintentionally killed the deceased on the night of 19th of July 2017 at Madumadu village, of Jilore location, Malindi Sub County within Kilifi County.

The court convicted the offender on his own plea of guilty to the offence of manslaughter on a charge prepared following the acceptance by the court of the plea agreement pursuant to section 137H of the Criminal Procedure Code (CPC), upon being satisfied of the factual basis of the plea agreement and that the accused was at the time of the agreement competent, of sound mind and had acted voluntarily in terms of Section 137G of the CPC.

The factual matrix of the matter is such that the offender is a mother of three children including the deceased, which she sired with three different men. The offender abandoned her second marriage on claims of abuse by her former husband who was the father to the deceased. She then left the deceased with her parents while she went to look for a job. While at work, she met her current husband, whom she sired her third born child with.

When the offender got married to her current husband, she did not disclose about the existence of her deceased son. She asserted that when her current husband came to know about the deceased, the issue would cause squabbles each time it would come up. The sequence of events which led to the death of the deceased were that, the offender sought permission from her husband to go to her parents’ home to fix some domestic issues. When she arrived at her parents’ house, she sought their permission to take her with her claiming that she wanted to live and look after him at her current husband’s home.

The offender collected all of the deceased’s belongings including documents and clothes in the presence of her mother and brother. The offender’s mother informed the offender’s current husband about the departure of the offender and the testimony of the offender’s husband is that the offender arrived home at around 2000hrs without the deceased.

It was after an interrogation by police officers and positive identification of the deceased’s body which was found in a drainage system, that the offender voluntarily confessed that indeed murdered the minor. The deceased, a year-old boy, was found blind folded with a yellow t-shirt covering his face with visible injuries on the head and back.

In assessing an appropriate sentence, the court has taken into consideration the totality of mitigating factors and sought to weigh them vis-a-vis the aggravating factors at the same time seeking to strike a balance on the nature of the offence, murder with malice aforethought and the offender, his personal circumstances and societal interest, that justice must not only be done but must be seen to be done.

Society requires protection from dangerous criminals and in fact the society looks up to the court to do justice not condone crime in a manner which would intrigue society into losing confidence in the whole justice delivery system. The court shall also consider the pre-sentence time of incarceration will be taken as part of punishment already served and suffered. I shall not lose sight of the pre-trial and during trial, incarceration period.

When sentencing convicts, in as much as sentences ought to be meaningful to convicts Court's need not only focus on the convict's degree of liability or the ghastly manner in which the offence was committed. Instead, the Court should also take into consideration amongst others the personal and individual circumstances of the offender as well as the possibility of reform and social re-adaptation of the convict. Thus it is an accepted legal principle that sentences should befit the offender and in this respect, the Court should take into consideration mitigating factors that may avail the convict.

The felony of manslaughter is punishable by the maximum sentence of life imprisonment under Section 205 of the Penal Code Act. Nevertheless, this embodies the maximum punishment which is usually reserved for the worst of such cases. The instant case falls within ambit of the most extreme cases of manslaughter. However, for the reason I shall discuss below, I therefore discounted life imprisonment.

In assessing an appropriate sentence, the court has to take into consideration the totality of mitigatory factors and sought to weigh them vis-a-visthe aggravatory factors at the same time seeking to strike a balance on the nature of the offence, murder with malice aforethought and the offender, his personal circumstances and societal interest, that justice must not only be done but must be seen to be done.

While the court is entitled to refer to the evidence in order to determine whether there existed aggravating circumstances or otherwise for the purpose of meting out the sentence, it is not proper for the court to set out to analyze the evidence as if it is meant to arrive at a decision on the guilt of the accused.

According to Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 of 2015:

“[71] To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:

(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) remorsefulness of the offender;

(g) the possibility of reform and social re-adaptation of the offender;

(h) any other factor that the Court considers relevant.

In Kenya, many courts have highlighted the principles of sentencing. One such case is the High Court criminal appeal decision in Dahir Hussein v. Republic Criminal Appeal No. 1 of 2015; [2015] eKLR, where the High Court held that the objectives include:

“deterrence, rehabilitation, accountability for one’s actions, society protection, retribution and denouncing the conduct by the offender on the harm done to the victim.”

I now analyse with foregoing in light of the factual matrix of this case. In mitigation, the offender has no previous criminal record hence I shall treat him as a first offender. The offender is youthful. She is a mother of 2 other daughters who needs a mother figure in their life. The last born is actually a toddler whom she is currently living with in prison.

The presentence report states that the offender exhibited remorse for her actions by admitting having committed the offence. It is also in mitigation that the offender saved the court’s time and resources which could have been lost in conducting a full trial. She also sought forgiveness to her parents who accorded the same to her. It was also asserted that the offender may have been suffering from emotional and psychological stress occasioned by her previous abusive relationship.

In aggravation, despite the fact that she was at all times, capable of distinguishing between right and wrong, it was obvious that the offender had planned and design to inflict harm against the deceased with full knowledge it would occasion to death.

I have taken in to account the callousness of the crime in light of the fact that it was brutality committed on an innocent child. I have considered the sanctity of human life and the need to protect it at all costs. The killing was senseless and heartless.

In the premises, as demonstrated above, the aggravating circumstances in this case outweigh the mitigating circumstances. In light of the principle of deterrence, the sentence available for the offender is forty-eight (48) months.

It is so ordered.

14 days right of appeal.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 11TH DAY OF MARCH , 2020

............................

R. NYAKUNDI

JUDGE