[2023] KEHC 23131 (KLR)

Republic v Muchera (Criminal Case 5 of 2022) [2023] KEHC 23131 (KLR) (5 October 2023) (Sentence)

Neutral citation: [2023] KEHC 23131 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 5 of 2022

JN Kamau, J

October 5, 2023

Between

Republic

State

and

Morris Bulemi Muchera

Accused

Sentence

1. The Accused person was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya). He entered into a Plea Agreement on July 31, 2023 whereupon this court convicted him of the offence of manslaughter contrary to Section 202 as read with Section 205 of thePenal Code.

2. The facts of the case were that on April 30, 2016 at 2000hrs, the Accused person was with his son Belvin Muchera (the deceased) at their home at Sukura village. While in house, Fanines Khagai heard a commotion outside her house and went and found the Accused person who told her that he had caned the deceased and asked her to come and see him. She accompanied him and he called the deceased three (3) times but he did not respond. He then stated that his son was dead. Fanines went back to her house to inform her husband, Stephen Bulemi. They both went to their father, Henry Bulemi to inform him of the incident.

3. They then went to the Accused’s person’s house through the back door but they did not find him or the deceased. They noticed traces of blood on the floor of the house and on the mattress where the deceased had laid. The Accused person approached George Osita to rush the deceased to Jumuia Kaimosi Hospital using his motorcycle. On their way to the hospital, the motorcycle broke down. The Accused person and the deceased got onto the motor cycle of one Duncan Ashanga who took him to hospital where the deceased was pronounced dead.

4. On their way back with the deceased, they met a group advancing towards them. The Accused person jumped out of the motorcycle, dropped the deceased and ran away. The crowd of people chased him but they did not get him. Stephen Bulemi informed the Assistant Chief who in turn informed the police. Police officers visited the scene and took the deceased’s body which had visible injuries on the left lower leg and left lower arm to Mbale Hospital Mortuary.

5. The postmortem was conducted on April 4, 2016. The cause of death was determined to have been cord compression and fracture of the cervical spine. The Postmortem dated April 4, 2016 was produced as evidence in this case and was marked as Exhibit 1.

6. Having entered into a Plea Agreement, the Accused person urged this court to sentence him to eight (8) years imprisonment. On its part, the State recommended a sentence of fifteen (15) years imprisonment.

7. The Prosecution did not mitigate. On the other hand, in his mitigation, the Accused person stated that he was extremely remorseful for the offence and was shocked by the death of his child. He regretted what had transpired. He pointed out that he had been in custody from March 30, 2016 to date and requested that the period be taken into account during sentence. He urged this court to consider that he was forty-two (42) years old and unmarried but intended to marry to establish a family.

8. According to the Pre-Sentence Report of Benard Mwembe, Probation Officer Vihiga County Office that was dated September 26, 2023 and filed on September 27, 2023, the Accused person never went to school due to a rift between his parents. He was said to have been involved in several unreported violent offences and for always making mistakes all the time.

9. The Probation Report indicated that the Accused person was of the view that he did no wrong as on the material date, he wanted to take the deceased to hospital as he was unwell. He had explained that he asked his friend to take him and the deceased to Musasa Hospital but that they were referred to Kaimosi Hospital where the deceased was pronounced dead on arrival. He was said to have thrown the deceased from the motorcycle but when he came home with the child, he found people waiting for him. He ran into Kakamega Forest and into Nandi where he was found working as a herdsman and was arrested. He sought for leniency on the ground that the child died due to illness.

10. On the other hand, the Probation Office established that the deceased died as a result of beatings after the deceased asked him several times where food was as he was hungry. The deceased was also said to have suffered a lot of torture previously, a fact that was confirmed by the Accused person’s paternal uncle.

11. According to the Accused person’s paternal uncle, the Accused person had a high temper and used to brutalise the deceased. The Accused person was now regarded as an outcast who was unwanted in the family and community. The community was hostile towards him for having killed the deceased and were not accommodative of his release on a non-custodial sentence. The Probation Office did not therefore find him suitable to be considered for a non-custodial sentence.

12. Notably, sentencing is one of the most intricate aspects of trial. Indeed, a trial does not end unless a sentence has been meted out. The principle of sentencing is fairness, justice, proportionality and commitment to public safety. The main objectives of sentencing are retribution, incapacitation, deterrence, rehabilitation and reparation. The Sentencing Policy Guidelines in Kenya have added community protection and denunciation as sentencing objectives. The objectives are not mutually exclusive and can overlap.

13. This court noted that the version the Accused person gave to the Probation Office was different from the facts that he admitted to before court. In case of discrepancy in the versions of what transpired on the material date, this court found and held that the facts it found to have been applicable herein were the ones to which the Accused person confirmed were true at the time he pleaded guilty to the charge of manslaughter.

14. It was evident that this was bad case of child abuse. According to the Postmortem Report April 4, 2016, the deceased who was aged eight (8) years at the time of his death had multiple bruises on both upper and lower limbs, fracture of the right upper third humerus, dislocation of the right shoulder joint and fracture of the neck. The nature of injuries showed that the deceased who was defenceless, suffered greatly before he died.

15. The Accused person mistreated him often and on the material date, he beat him for asking for food, which was his fundamental and constitutional right as a child. Indeed, Article 43(1)(c) of the Constitution of Kenya, 2010 provides that every person has the right to be free from hunger, and to have adequate food of acceptable quality.

16. The Accused person further contravened the provisions of Article 29 that stipulates that “Every person has inherent dignity and the right to have that dignity respected and protected.” He dumped the deceased on the road when he realised that he was dead. The deceased deserved dignity even in death but the same maltreatment the Accused person who was his father meted upon him while he was alive followed him in death. The Accused person failed him when he did not protect him choosing instead to caused his death.

17. There was no doubt in the mind of this court that from the injuries that the deceased sustained, the Accused person intended to cause him maximum harm. The senseless beating eventually led to his death. This was contrary to Article 26(3) of the Constitution of Kenya that provides that “A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.”

18. It was therefore necessary that any punishment that was meted to the Accused person deter him from committing similar action in future.

19. It was also important that the sentence communicate to the community, condemnation of his criminal act. The sentence would indirectly send a strong signal to deter would be offenders from committing such an offence.

20. The sentence also had to one that was hinged on retributive justice for the secondary victims. The secondary victims and society were left without a nephew, grandchild and cousin. The deceased’s death was unnecessary and unprovoked. Justice not only needed to be done but it had to be seen to be done.

21. If the court did not take into account the three (3) objectives of deterrence, retribution and denunciation of his offence at the time of sentencing him, chances of the Accused person being reintegrated in the society would be next to impossible as there were possibilities of being harmed.

22. The circumstances of the case herein led this court to conclude that a non-custodial sentence was not suitable herein.

23. Having considered the facts of this case and the Accused person’s mitigation, this court to the firm conclusion that a sentence of fifteen (15) years would be suitable and adequate herein.

24. Accordingly, it is hereby directed that the Accused person be and is hereby sentenced to fifteen (15) years imprisonment to run from today. The period he spent from when he was first arraigned in court on April 27, 2016 to October 4, 2023 be and is hereby taken into account in line with Section 333(2) of the Criminal Procedure CodeCap 75 (Laws of Kenya) while computing his sentence.Orders accordingly.

DATED AND DELIVERED AT VIHIGA THIS 5TH DAY OF OCTOBER 2023J. KAMAUJUDGE