[2022] KEHC 9932 (KLR)

Republic v Mungai (Criminal Case 10 of 2018) [2022] KEHC 9932 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9932 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 10 of 2018

TM Matheka, J

July 8, 2022

Between

Republic

Prosecution

and

Simon Kihara Mungai

Accused

Ruling

1. The accused person herein is Simon Kihara Mungai, was initially charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The Particulars of the offence were that on the February 11, 2018 at Mukinyai Village,Mutamaiyo Location in Molo Sub-county he murdered Mary Nyanjua.

2. The accused pleaded not guilty to the charge of Murder on February 27, 2019 and the case was subsequently set down for hearing but it never commenced as the advocate representing the accused sought to Plea bargain for a lesser charge of Manslaughter and they were granted time to Plea Bargain on February 9, 2022.

3. On of May 18, 2022, the court was told that parties had settled on a Plea Agreement datedMarch 8, 2022pursuant to section 137A which states: Plea agreement negotiation(1)Subject to section 137B, a prosecutor and an accused person or his representative may negotiate and enter into an agreement in respect of—(a)reduction of a charge to a lesser included offence;(b)withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges.

4. The prosecution substituted the murder charge with the charge of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code pursuant.

5. Pursuant to Section 137F of the Criminal Procedure Code the accused person pleaded guilty to the agreed charge.

6. The facts of the case as presented by the prosecution counsel are that on February 11, 2018 at 10. 00 a.m the accused and the deceased were at Mukinyai in Molo. They argued over how to share the charcoal and they decided to refer the matter to the village elder who advised them to share the same equally. The accused had other charcoal getting ready for removal and at night he went to check on it. He had a panga and upon reaching there he busted the deceased removing charcoal and she ran away. The accused pursued and fatally attacked her using a panga. Thereafter he carried her body and threw it in the river, and went back home. On February 12, 2018 the deceased body was found and the accused suspected of killing her. The matter was reported to the police who went to the accused house and found a panga and a blood stained jacket. Subsequently, the accused was charged with the offence of murder which has now been reduced to manslaughter following a plea bargain agreement.

7. The Post mortem report, blue jacket and a panga were produced as P. Exhibits 1, 2 and 3 respectively.

8. The accused admitted that the above facts were correct and he was convicted on his own plea of guilt for the offence of Manslaughter.

9. The Prosecution proposed a custodial sentence of 10 years imprisonment.

10. The defence counsel on his part sought for a non-custodial sentence of three (3) years on grounds that the accused is the first time offender, peaceful man, did not waste court’s time as he pleaded to a lesser offence and that he has been in custody for close to four (4) years now. He referred this court to the afore stated circumstances that led to the commission of the offence and stated that the accused acted out of rage and never intended to kill the deceased.

11. The Pre-Sentence Report on the accused reveals that the accused is currently aged 40 years and he schooled up to class five and dropped out due to lack of comprehension and parental neglect. He started engaging in casual jobs in the neighbourhoods until his arrest. He has one child and separated with his wife after his arrest. He is described as a hardworking man by the local administration.

12. On the circumstances of the offence, the report states that the accused and the deceased had entered into a charcoal burning business, after the first harvest they disagreed on how to share the charcoal but through the help of the village elder the parties agreed to harvest the charcoal together and share the same. At night the accused went to check on the charcoal that had been left on the kiln and upon reaching there he busted the deceased harvesting and busy packing the same into sacks. When the deceased saw the accused she ran away and the accused in the spur of the moment fueled by anger pursued her and fatally attacked her.

13. It is further stated that the accused is remorseful and regrets his actions. The victim’s family suffered a great loss after losing the deceased whom they were dependent on. They said the accused’s family had not made any reconciliatory efforts. The local administration and the community are ready to accept the accused back to society.

14. The report recommends the accused to be granted a maximum non-custodial sentence of 3 years’ probation supervision.

Analysis & Determination 15. The issue is what is the most suitable sentence under the circumstances. The Chief Justice Hon. Willy Mutunga in the Sentencing Policy Guidelines states:“These guidelines recognise that sentencing is perhaps one of the most intricate aspects of the administration of trial justice. It acknowledges that sentencing impacts not just the individual offender but also the community, and indeed the entire justice system. They also seek to enhance the participation of the victim, and generally infuse restorative justice values in the sentencing process. Significantly, they champion the national value of inclusivity by promoting community involvement through use of non-custodial sentences in suitable cases.”

16. In deciding on the sentence I find that these words provided useful goal posts.

17. On whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -a)Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.b)Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.c)Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.d)Protection of the community:- where the offender is likely to pose a threat to the community.e)Offenders responsibility to third parties: - where there are people depending on the offender.f)Children in conflict with the law: - non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate.

18. In this case the accused;Is a first time offender;

He is remorseful;

Never wasted court’s time as he pleaded guilty unequivocally to the facts which disclose an offence of manslaughter

He is a hardworking man and has a child who depend on him;

Does not pose any threat to his community if released;

Has been in custody since the year 2018;

His community and the local administration are ready to accept him back to the society;&

The pre-sentence report is favorable to him and it proposes a non-custodial sentence of 3 years’ probation supervision.

19. Punishment for Manslaughter under Section 205 of the Penal Code is up to life imprisonment.

20. The prosecution proposes a term of 10 years imprisonment. Taking into consideration any remission of a third of the sentence that would have been available to the accused, he would serve about 7 years. Section 333 (2) of the Criminal Procedure Code the court is required to take into consideration the period spent by an accused in custody prior to the sentence. In this case the accused has already spent four years in custody hence out of the 7 years, he has already served four.

21. The proposal to serve the rest of the sentence in the community is therefore appropriate.

22. Taking into consideration the foregoing, I order that the accused person be placed on Probation Supervision for three years. During which period he will abide by the Probation Order.

23. Orders Accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY, 2022. MUMBUA T MATHEKA,JUDGE.CA EdnaMr. Kihara for StateMr. Murunga for Accused Person N/A