[2022] KEHC 3178 (KLR)

Republic v Muthoni (Criminal Case E040 of 2020) [2022] KEHC 3178 (KLR) (Crim) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3178 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E040 of 2020

LN Mutende, J

July 13, 2022

Between

Republic

Prosecution

and

Collins Kuria Muthoni

Accused

Ruling

1. Collins Kuria Muthoni, the Accused, was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, but, opted to enter into a plea-bargaining arrangement with the prosecution as per the plea bargain agreement subsequently signed on 28th September, 2021 that was adopted as an order of this court pursuant to Section 137 H of the Criminal Procedure Code. Consequently, he was convicted of a lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

2. Facts of the case are that on 3rd November, 2020 at about 19:40 Hours the deceased, Nelson Omondi alias Mandera and his three friends left their place of work situated at Kirinyaga road, Nairobi, and boarded motor vehicle Registration Number KCB 283 J, mini bus, a Public Service Vehicle destined for Dandora Phase 4 Estate. The accused and Eric Gitonga alias Erico were conductors on the motor vehicle.

3. In the course of the journey the deceased gave Eric, one of the conductors Ksh 1000/- and the fare having been Kenya Ksh 50/- his change was Ksh. 950/- The conductor gave him Ksh. 900/- leaving a balance of Ksh.50/- Upon reaching a place known as Canaan, the deceased asked the conductors for his money as he was about to alight at Stage 41 but they denied owing him any money. Other passengers intervened and asked the conductors to give the deceased his money which they did but the other conductor told him that he would not eat the money.

4. Upon alighting from the vehicle, the accused and his colleague followed the deceased and assaulted him. In the course of the scuffle the deceased was hit by a stone. The accused escaped as the deceased was rescued by members of the public who took him to Kwa Mwangi clinic where he was given first aid and transferred to Mama Lucy Hospital, then to Kenyatta National Hospital where he succumbed.

5. A postmortem examination was conducted which established that the cause of death was a head injury that was consistent with blunt trauma to the head.

6. In an endeavor to reach a suitable sentence this court called for a pre-sentence report. The report dated 27th May, 2022 captured views of the victims obtained from the deceased’s father, aunt and cousin. The deceased who left behind a young widow with a one-year old child was the main bread winner of the entire family. The family of the accused and the deceased had engaged in reconciliatory discussion, they wished to benefit from monetary restitution which has however not borne fruit.

7. The accused and his extended family are well known to members of the community at Gekandu area where the family does not have any criminal history. It was the conclusion of the probation officer that the accused was of medium risk of offending.

8. The prosecution asked the court to treat the accused as a first offender as it did not have previous records in that regard.

9. In mitigation, Mr. Wangila, learned Counsel for the accused called upon the court to be guided by the facts as captured in the plea agreement. He urged that the accused is a young man, a first offender who was taking care of his young family, therefore deserved a lenient sentence.

9. The provisions of Section 205 of the penal code enact that:Any person who commits the felony of manslaughter is liable to life imprisonment.

10. I have been called upon to consider sentencing the accused to a non-custodial sentence. Whether or not to consider a custodial or non-custodial sentence depends on circumstances of the case. The court must consider existence of aggravating circumstances if any, and the mitigating factors. (Also see Sentencing Policy Guidelines)

11. The accused has expressed remorse, is a young adult stated to be 24 years old, and a first offender. The deceased was hit by a stone on the head an act that caused a fracture of the left temporal region. The events that happened led to loss of an innocent life.

12. Section 333(2) of the CPC provides thus:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

12. In the case of Bukenya vs. Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3, the court stated that;“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement.”

15. From the facts presented, the deceased, an innocent individual who sought to be given his money was assaulted, an assault that turned fatal. In the case of Omuse vs. R(2009) KLR 214, the court held that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and the proper exercise of discretion in sentencing requires the Court to consider that fact and circumstances of the case in their entirety before settling for any given sentence.

16. A comparison with other sentences meted out show that courts have meted out sentences outside the maximum sentence of life imprisonment for manslaughter. In the case of Stephen Mwai Ndeti & Another (2018 ) eKLR the accused killed their son and pleaded guilty to the offence of manslaughter, Odunga J. sentenced them to six (6) months’ probation and also noted that there was reconciliation.

17. In the case of R Vs. Jared Onyoni Maina(2021) eKLR, Ougo J. sentenced the accused to ten(10) years imprisonment. In that case the accused pleaded guilty to manslaughter, he stated during mitigation that he was drunk and that he would stop taking alcohol. He was 39 years old and had 4 children.

19. In this case, the accused being rehabilitated under the custody of the correctional facility would meet an applicable objective of sentencing which include deterrence, and reformation. It would also ensure justice for the victim is served.

20. The accused has been in custody for one year, seven months, a period that I do take into consideration. For reasons given, I sentence the accused to ten(10) years imprisonment, having been in custody for the duration indicated, he will serve a sentence of eight years, three months.

21. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 13THDAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:AccusedMr. Wangila for AccusedMr. Okeyo for the StateMr. Meso for the victim’s familyCourt Assistant - Mutai