[2023] KEHC 25092 (KLR)

Republic v Muchoki (Criminal Case 12 of 2017) [2023] KEHC 25092 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25092 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case 12 of 2017

RM Mwongo, J

November 7, 2023

Between

Republic

Prosecution

and

Patrick Mbugua Muchoki

Accused

Judgment

1. The accused was charged with the murder on December 18, 2017, of his estranged wife, Truphena Waitherero Gitu, at Sagana Township in Kirinyaga County. On December 20, 2017 he pleaded not guilty to the offence. Six prosecution witnesses were heard before the case stalled for a variety of reasons.

2. On December 8, 2021 the defence proposed a Plea Bargain Agreement (PBA). The matter was given a date for Plea Bargain Agreement settlement on May 16, 2022 to give the parties time to consider the proposal. Finally, on February 28, 2023, the parties availed the signed Plea Agreement pursuant to section 137A (i) and 137B of the Criminal Procedure Code.

3. A completed Plea Bargain Agreement dated September 27, 2022 was adopted by the court pursuant to section 137G of the Criminal Procedure Code, after the court confirmed that the accused understood his rights under section 137F of the CPC. Further, the court was satisfied that the accused had understood 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.

4. Accordingly, the court convicted the accused with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The Pre-Sentence Probation Report had been filed hence the matter was set for mitigation on July 24, 2023.

5. The brief facts of the case are that on December 11, 2017, the deceased and the accused, who had been married but were now estranged, were drinking at Sagana up to 1. 00 am. While leaving the drinking place a quarrel arose as the deceased refused to spend the night at the accused house. The deceased went to her cousin’s house. The accused came to the house and knocked on the door violently. The deceased feared for her life and escaped from her cousin’s house. He chased her and beat her senselessly using a piece of wood. She succumbed to the injuries.

6. The post-mortem report dated December 15, 2017 produced at the hearing, indicates that the deceased died due to severe internal hemorrhage. The body had a deep cut wound on the head at the right parietal region, the left hand was deformed at the wrist, the right ring finger was fractured at the base, the were bruises on both knees. Internally, the right side thorax cavity had blood, and there was also blood in the peritoneum due to raptured liver.

7. At mitigation, defence counsel stated the accused was 36 years old; that the accused was a 1st offender and was remorseful; that he had been rehabilitated while in prison; that he was remorseful; that he has a child aged 7 years living with her aunt; that he has been in remand incarceration for 5 years and this time should be taken into consideration during sentencing. Further, counsel pointed out that the probation report is favourable; and thus, he prayed for a non-custodial sentence.

8. The prosecution submitted that the deceased had blood in his hands for killing his wife. He had achieved only one bible certificate while in remand prison. There is no evidence of rehabilitation while in prison. The prosecution was not opposed to a non-custodial sentence. He should be placed on a program for anger management to assist in re-entering society.

9. The Probation Report indicates that the accused is 36 years old and has three siblings who live independently in Thanju, Sagana and Kiamuthambi. The accused dropped out of school in class five due to poverty and trained as a barber in Makutano. Later, he returned to his home in Thanju and started farming and doing casual jobs. The offender met with the victim in 2011and in 2016 they were blessed with a boy. He is currently studying at Kahiro Primary School and stays with his maternal aunt. He has undertaken bible studies and tailoring lessons while in prison.

10. 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.

11. The victim impact statement indicates that the deceased was the accused’s wife; that her family members are in the process of healing, though they have yet to come to terms with her death but have forgiven the accused. They do not object to the offender being placed under a non-custodial sentence. They state that due to the fact that there is a son left behind, the offender may be released to take care of him. There are no compelling social reasons found to disqualify him for a non-custodial sentence.

12. The Probation Report ultimately recommends the accused for a non-custodial sentence and community service order to serve at Kiamuthambi Chief’s Camp.

13. The applicable law on sentencing 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’

14. This section provides for the maximum sentence of life imprisonment. This court has taken into consideration the aggravating circumstances in that the convict murdered the victim by hitting her with a stick resulting in severe internal hemorrhage.

15. The supreme Court decision in Francis Karioko Muruatetu &another v Republic [2017] eKLR held that mitigating circumstances should be considered before sentencing, and gave the following guidelines:“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.”

16. In light of the above sentencing guidelines, and taking into account the mitigation and the Probation Report that recommended for a non-custodial sentence, I think that the accused satisfies the criteria for a reduced sentence from the maximum life imprisonment.

17. I note that the accused has spent one month short of 6 years in remand custody.

18. Accordingly, I sentence the accused to 14 years imprisonment effective from the date of his first incarceration. The sentence is to be reckoned as follows:a.The court notes that under the Prisons Act the accused is entitled to remission of 1/3rd of the sentence which is 5 years and 6 months leaving a balance of 8 years and 6 months;b.Of that balance, the accused has spent 5 years 11 months in remand custody, leaving a balance of 2 years and 9 months.c.This balance of 2 years and 9 months shall be served in a non-custodial sentence whereby the accused shall be engaged in community service at Kiamuthambi Chiefs Camp under the supervision of the Chief and the Probation Officer;d.During the probation period the accused shall also attend counselling and guidance on anger management and positive living which programmes shall be organized and facilitated by the Probation Officer, and the accused’s attendance shall be regularly recorded.e.Should the accused fall afoul of the law and be convicted of any offence during the probation period, or fail to comply with instructions or directions of the Chief or Probation Officer, the sentence herein shall be liable to enhancement review and the accused shall again be arrested and presented before the court for such review.

19. Orders accordingly.

DATED AT KERUGOYA THIS 7TH DAY OF NOVEMBER, 2023. R. MWONGO JUDGE