[2023] KEHC 25652 (KLR)

Republic v Mwangi (Criminal Case 24 of 2019) [2023] KEHC 25652 (KLR) (16 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25652 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 24 of 2019

RL Korir, J

November 16, 2023

Between

Republic

Prosecutor

and

Sospeter Muchiri Mwangi

Accused

Sentence

1. The Accused was charged with the offence of murder contrary to section 203 as read with section 204 of thePenal Code. The particulars of the charge were that on the 5th day of October 2019 at Mulot Sunset Trading Centre within Bomet County, murdered Samuel Ndungu Njunge.

2. At the conclusion of the trial, this court found the Accused guilty of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. In convicting the Accused the court in its Judgment dated 15th June 2023 held as follows:-“It is my finding, upon review of the evidence and guided by the authorities above, that the evidence on the whole does not prove beyond reasonable doubt that the Accused possessed the requisite malice aforethought when he stabbed the deceased. I grant him the benefit of doubt on this last ingredient which means that he can only be convicted of the lesser offence”.

3. This court heard the mitigation of the Accused on 26th July 2023. His learned defence counsel Mr. Kenduiwo submitted that the Accused and the deceased were very good friends who used to work together amicably and that he was very remorseful for what happened. Counsel further submitted that the Accused was married and had three school going children and that the children would suffer if he was placed in custody as he was the sole bread winner of the family as his wife was not engaged in gainful employment.

4. It was the Accused’s further mitigation that he was a first offender and that he was still traumatized by the death of his friend.

5. A pre-sentence Probation Officer’s Report was filed on 22nd June 2023 and it stated that the Accused asked for forgiveness and prayed for leniency from this court. The Report also stated that the Accused’s family was wary about having the Accused being placed on probation. That they were shocked by the offence as they considered the Accused and the deceased to be very good friends.

6. The Report stated that the deceased’s father had not been able to meet and talk to the Accused’s family and that the Accused’s family had showed a lack of commitment in trying to seek for forgiveness and reconciliation. That the victim’s family was devastated by the demise of their loved one and remained committed to finding justice through the court.

7. According to the report, the community and local administration were not keen on having the Accused serve a non-custodial sentence as they considered a possible reprisal from the deceased’s family. That those who committed the offence of murder were treated as outcasts and were usually exiled. The Probation Officer quoted the community members interviewed as being of the view that a non-custodial sentence would be a form of injustice to them as it was not enough to discourage or deter future occurrences.

8. Mr. Wawire, the learned Prosecution Counsel submitted that the Accused was a first offender and urged the court to rely on the Probation Report and particularly on the victim impact statement.

9. This court is guided by the objectives of sentencing as set out in the Judiciary sentencing Guidelines 2023. They include retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. Further guidance on sentencing was given by the Court of Appeal inThomas Mwambu Wenyi v Republic (2017) eKLR, where it held that:-“As for the sentence, the Supreme Court of India in Alister Anthony Pereira v State of Maharashtra at paragraphs 70-71 had this to say on sentencing:-70. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.71. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudenceAs a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

10. I have taken into consideration the circumstances of the case. In substituting the charge from murder to manslaughter, this court held at paragraph 41 of the judgement thus: -I have however not found sufficient evidence to prove that the Accused had the requisite mensrea. The Prosecution’s own witness PW3 told the Court that the Accused and the deceased were friends and worked together as butchers in Mulot and Sotik. It was clear to the court therefore that being butchers, knives were their tools of trade which would create doubt in the mind of the court as to whether or not the Accused had armed himself in preparation to kill the deceased. PW3 further testified that she overheard a quarrel about money and that the two fought with the deceased hitting the Accused with a rungu and the Accused stabbing the deceased. The Government Analyst PW5 stated that his findings suggested that both were injured as their clothes bore their own respective DNA. Considered together, this evidence does not disclose any premeditation or planning.

11. I have considered the above, alongside the Pre-Sentence Probation Officer’s Report and the Accused’s mitigation. It is my finding that the Accused does not deserve the maximum sentence of life imprisonment provided by Section 205 of the Penal Code. However, it is important that there be proportionality in sentencing the Accused as the sentence passed should be in accordance to the gravity of the offence. The Sentencing Policy Guidelines at paragraph 3:1 states:-The sentence meted out must be proportionate to the offending behavior. The punishment must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behavior is weighted in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender.

12. The issue of proportionality of a sentence was aptly stated in Hoare v. The Queen (1989) 167 CLR 348, as follows: -“A basic principle in sentencing law is that a sentence of imprisonment imposed by the court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.”

13. I have considered that the offence occurred as a result of the Accused’s temperament and reaction when the deceased demanded his money from him. To the mind of the court, the Accused would benefit from a rehabilitative custodial sentence.

14. In the end, I sentence the Accused to serve 20 years’ imprisonment. The sentence shall be deemed to commence from the date of his arrest and first arraignment in court being the 9th October, 2019.

15. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 16TH DAY OF NOVEMBER, 2023. R. LAGAT-KORIRJUDGERuling delivered in the presence of the Accused, Mr. Kenduiwo for the Accused, Mr. Njeru for the state and Siele (Court Assistant)