[2022] KEHC 15143 (KLR)

Republic v Munyanya (Criminal Case 04 of 2020) [2022] KEHC 15143 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15143 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Case 04 of 2020

SN Mutuku, J

July 14, 2022

Between

Republic

Prosecutor

and

Vincent Munyanya

Accused

Judgment

1. Vincent Munyanya is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the night of March 8, 2020 at Olekasasi area in Ongata Rongai township within Kajiado North Sub-County in Kajiado County Murdered Joseph Ndungu Mwangi.

2. He pleaded not guilty. Hearing commenced and the prosecution called two witnesses to testify against the accused. At this stage of the trial, negotiations for a plea bargain agreement were commenced. This culminated in a plea bargain agreement dated May 31, 2022. Following this agreement the prosecution brought another charge sheet with fresh information for the offence of manslaughter leading to the plea bargain proceedings on May 31, 2022.

Facts of the case 3. The accused pleaded guilty to manslaughter. The prosecution presented facts of the case as follows:On the March 8, 2020 at Olekasasi area in Ongata Rongai Township in Kajiado Count, the accused held a birthday party for his son at his house. The accused and his wife Christine Nyaboke Atuti invited several guests to the party including his family members and friends. The accused was one of the invited guests. The party started well and went on overnight from 7th to March 8, 2020. At around 3. 00am one of the guests, Esther Mwango went to buy more drinks but by 5. 00am she had not returned. The guests got impatient and asked to leave the party and the accused allowed them to leave.In that process the accused discovered that his phone was missing. He asked his wife to flash the phone but his wife’s phone was also missing. Attempts to find the two phones was unsuccessful. They used a guest’s phone to call accused wife’s phone but it was not ringing. The accused decided to search all the guests. The deceased Joseph Ndungu resisted the to be searched and left the room. The accused followed him leading to an altercation. The deceased was injured in the scuffle. He left the place and did not return. He died while undergoing treatment at Nairobi Women’s Hospital.The treatment notes and post mortem report were produced in court as Ex 1 and 2 respectively. Cause of death was found to be severe head injuries as a result of blunt force trauma. The accused was arrested and charged with murder now reduced to manslaughter.

4. The accused confirmed that the facts as presented were correct. Consequently, this court convicted him for the offence of manslaughter after he confirmed that the facts were correct.

5. During mitigation hearing, the accused, through his counsel Ms Diana Mageto, submitted that the circumstances leading to act were as a result of provocation and that the actions of the accused were not intentional. She mitigated the accused is aged 31 years, is a father and a husband and is in gainful employment operating an uber business; that he supports his family and extended family with an ailing mother; that he is remorseful and offered to pay for the funeral expenses for the deceased amounting to Kshs 220,000 and that he sought reconciliation with the family of the deceased.

6. This court was told that the accused seeks another chance to better his life and argued that what he seeks is restorative justice and not incarceration.

7. The Prosecution counsel argued that they rely on the sentence guidelines; that though the accused pleaded guilty under a plea bargain he caused the death of the deceased; that prosecution was seeking a stiff custodial sentence; that the accused needs to be taught how to manage his anger and that a sentence of 3 years in jail should be a sufficient sentence.

Determination 8. This court called for a pre-sentence report from the Probation Office. The report was filed on June 10, 2022. The report shows that the accused accepts responsibility for the death of the deceased but states that it was accidental and not planned and that the fight arose after a quarrel following the accused’s lost mobile phone. It shows that the accused is deeply remorseful and regrets the loss of the life of the deceased. The report shows the efforts the accused and his family made towards the family of the deceased including presenting Kshs 230,000 to them.

9. I have read the entire report. Although it shows that the family of the deceased is yet to come to terms with the loss of their family member, the report is generally positive towards the accused and recommends a non-custodial sentence to afford the accused an opportunity to manage his anger issues.

10. The offence of manslaughter is punishable by the maximum penalty of life imprisonment under section 205 of the Penal Code. However, this only represent the maximum sentence usually reserved for the extreme and worst-case scenario. In the present case the accused is noted to be a first offender who is remorseful and that the pre-sentence report is favourable. The accused has also shown deep remorse and has made efforts to approach the family of the deceased for reconciliation.

11. I have considered this matter. It is quite unfortunate that merry-making turned ugly leading to a loss of life. The cause of the altercation that led to a fight resulting in injuries that caused the death of the deceased was not planned. The circumstances that led to his injuries are regrettable indeed and I am sure the accused shall live with that black dot all his life.

12. Although the probation report is not binding to this court, I find it reasonable and favourable to the accused. It is my considered view that a a mix of time spent in custody and non-custodial sentence is appropriate in these circumstances. I therefore sentence the accused, Vincent Munyanya to one (1) year custodial sentence and two years non-custodial sentence under the supervision of a probation officer. He has a right of appeal which should be exercised within 14 days after this date.

13. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 14TH DAY OF JULY 2022. SN MUTUKUJUDGE