[2023] KEHC 26746 (KLR)

Republic v Mulongo & another (Criminal Case E009 of 2022) [2023] KEHC 26746 (KLR) (15 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26746 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E009 of 2022

DK Kemei, J

December 15, 2023

Between

Republic

Prosecutor

and

Samson Chemiat Mulongo

1st Accused

Leah Nabwala Wekesa

2nd Accused

Ruling

1. The accused herein Samson Chemiat Mulongo and Leah Nabwala Wekesa have been charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code. Vide the judgement of this court dated 27th day of October, 2023 they were each found guilty and convicted for the murder of Jane Nangila Sindani.

2. During the sentence hearing conducted on 27. 10. 2023 and 9. 11. 2023, Miss Wakoli for both accused submitted that the accused persons are remorseful for the offence and that they are husband and wife respectively and parents of five children who are still school going and who rely on them for support. Counsel sought for the court’s leniency as they are first offenders. It was finally submitted that the circumstances of the offence as well as the pre-sentence reports merits the 2nd accused to be granted a non-custodial sentence.

3. Miss Mwaniki for the prosecution submitted that the actions of the accused persons were not in any way justified in that a life was lost yet the accused could have found another way to settle their issues but not to brutally cut short the deceased’s life. Learned counsel sought for a life sentence to act as a deterrence. It was finally submitted that the pre- sentence report is not favourable for a non-custodial sentence due to the fact that the deceased died a painful death.

4. A pre- sentence report was filed by the County Probation Officer Bungoma. It is dated 22. 11. 2023. As regards the 1st accused, it is indicated that he does not enjoy community acceptance going by the fact that the villagers burnt and destroyed his houses and that the community is opposed to a non custodial sentence. As regards the 2nd accused, the report indicates that she had attended a funeral and came back earlier than usual and found her husband (1st accused) in her matrimonial bed with the deceased. The report indicates that the 2nd accused ganged up together with her husband and killed the deceased. It is obvious that the 2nd accused was angered upon finding the deceased on her matrimonial bed in the company of her husband. Indeed, it was the 2nd accused who alerted the villages to rush to her compound and see for themselves the double-dealing deceased. The villagers arrived and found the deceased inside the house of the accused persons already injured and that the 1st accused ordered them to leave his compound as he intended to get down to business and complete his task. The body of the deceased was found the following day lying outside the gate of both accused persons. Indeed, the murder weapons as well as the deceased’s plastic sandals were retrieved from a toilet within the home of the accused persons. The area of the deceased’s body which bore the brunt of the injuries were her private parts. It is only as scorned woman who could go to that length and that the revenge visited upon the deceased was beyond comprehension.

5. I have considered the mitigation presented on behalf of the accused persons as well as the response by the prosecution’s counsel. I have also considered the pre- sentence report. Under section 204 of the Penal code, the punishment for murder is a sentence of death. However, following the decision of the Supreme Court in Francis Karioko Muruatetu & 2 Others -vs Republic ( 2017) eKLR . The mandatory nature of death sentence was declared unconstitutional and that Convicts should receive mitigating circumstances from the offender before imposing an appropriate sentence thereafter. The court could still impose a sentence of death if the circumstances warrant it.

6. The circumstances leading to the death of the deceased are rather tragic. It turned out that the deceased and 1st accused had been having a secret love affair and that the 1st accused invited the deceased to his home while the 2nd accused who is wife to1st accused was away attending a funeral. Apparently, the 2nd accused arrived ahead of time and found the two love birds on her matrimonial bed in flagrant delicto. The 2nd accused naturally was not amused about the turn of events as she alerted the villagers to rush to her home and see for themselves. The villagers arrived and found the deceased lying down inside the house of both accused persons already injured and that they were chased away by the 1st accused and that the body of the deceased was found the following morning outside accused’s gate with her private parts badly injured. It is obvious that the 2nd accused was scorned by the act of adultery between the deceased and her husband and thus teamed up with him and injured the deceased whom they brutally and fatally injured. The pathologist formed the opinion that the cause of death was severe hemorrhage resulting from cut left femoral artery and vein caused by a sharp object due to assault.It is instructive that the murder weapons namely a metal rod and two pangas were recovered from a toilet within the accused’s compound. It is obvious that the deceased died a very painful death. I find that the death was not warranted as the accused persons could have engaged the local administration or clan elders for intervention but not to eliminate the deceased. They should have just ejected her from their compound but not to kill her. She did not deserve to die.

7. It is also noted that both accused persons still maintain their innocence and are in denial for the offence and hence they are not remorseful as captured by the pre- sentence report. The Court of Appeal in Charo Ngumbao Gugudu -versus Republic ( 2011) eKLR held as follows:-“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is thus not proper for the court to fail to look at the facts and circumstances for the case int their entirety before settling for any given sentence. See Amani – Versus - Republic (1990) eKLR.”From the postmortem report and the accounts of the witnesses, it is clear that the deceased died a very painful death. The attackers concentrated the assault on the deceased’s genital area to send a message to all and sundry as to what the deceased had done and been punished for. The accused persons literally took the law into their hands and ended the life of the deceased just like that. The pre- sentence report reveals that the accused persons are not wanted in their village due to their abhorrent act and that their homestead was completely destroyed. I find the circumstance of the offence requires custodial rehabilitation of the accused persons before they could be released back to the society.

8. It is noted that the accused persons have been in custody since the time of their arrest to date. This period will be taken into consideration. The custodial rehabilitation will benefit the accused persons as it will help mould them into better individuals before being released back to the society.

9. In the result, I order each of the accused herein Samson Chemiat Mulongo and Leah Nabwala Wekesa to serve a sentence of thirty (30) years’ imprisonment which shall commence from the date of arrest namely 5. 1.2022.

DATED AND DELIVERED AT BUNGOMA THIS 15TH DAY OF DECEMBER,2023D. KEMEIJUDGEIn the presence of :-Samson Chemiat Mulongo 1st AccusedLeah Nabwala Wekesa 2nd accusedMiss Wakoli for both accusedMiss Mwaniki for prosecution