[2022] KEHC 12870 (KLR)

Republic v Nderitu (Criminal Case E003 of 2021) [2022] KEHC 12870 (KLR) (9 September 2022) (Sentence)

Neutral citation: [2022] KEHC 12870 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E003 of 2021

TM Matheka, J

September 9, 2022

Between

Republic

Prosecution

and

Peter Maina Nderitu

Accused

Sentence

1. Peter Maina Nderitu was charged with murder contrary to section 203 as read with section 204 of the Penal Code. It was alleged that on the night of 24th and December 25, 2020 at Eastleigh Estate Ndege Ndimu Sub Location Nakuru Sub County, Nakuru County jointly with others not before the court he murdered Charles Ngatia Nderitu. He pleaded not guilty.

2. On June 8, 2021 the advocate for the accused, Ms Sabaya informed the court that the accused person wanted to enter into a plea agreement with the ODPP. Ms Murunga for DPP had no objection and parties were given a mention date to confirm the progress of their engagement.

3. On May 24, 2022 the court was informed that the parties had entered into a plea agreement. The accused person was put on oath, and he confirmed that he had freely and voluntarily entered into a plea agreement, and understood its implications. He confirmed that he had proposed to plead to the lesser charge of manslaughter, contrary to section 202 as read with 205 of the Penal Code, and the state was in agreement.

4. He pleaded guilty to the charge of manslaughter contrary to section 202 as read with 205 of the Penal Code. The facts were read to the accused; That on December 25, 2020 at 8. 00 am, the accused Peter Maina Nderitu reported to the OCS Lanet Police Station that his brother Charles Ngatia Nderitu was found dead in his house. The police visited the scene. They noted that the house of the accused was very near that of the deceased. They noted that the body had very serious injuries and were of the view that if he had been attacked by other people the accused would have heard the commotion. They interrogated the accused who told them that on December 24, 2020 he had found his brother Charles while he was drunk. He and one Benard brought him to his house and on the morning of 25th his brother was found dead.

5. Police continued to investigate. They were of the opinion that the accused was involved in the death of his brother.

6. On December 30, 2020, at 6. 00 am the police arrested the accused together with Daniel Maina, Marcia Waitherero Maina as the suspects in the death of Charles. Upon his arrest the accused told the police to release the others because he was the one who had caused his brother’s death.

7. The OCS, then called in the accused and requested him to record his statement on how you had killed his brother. He told the police that one Peter Gikonyo Mwaura had persuaded him to kill Charles and thereafter he would take him to a church where they would give him wealth – mali.

8. The accused told the police that on that December 24, 2020, he did what Peter Gikonyo had told him to do. After taking Charles home in a drunken state, he said he went to his house, cut his throat, and when he saw he was dead, cut his legs, from the ankle. Then he went to his house, which was about one metre from house of Charles. He then reported to Peter Gikonyo that he had completed his instructions. Then he rang his mother and told her Charles was dead. Then he went to the police station and reported Charles had been found dead.

9. On December 31, 2020 post mortem was done on the body of Charles. the cause of death is shock caused by blood loss, caused by sharp force trauma on the neck,

10. Both the post mortem report and the accused’s confession were produced as P Exhibit 1 and 2 respectively. The accused was then charged with murder.

11. The same was reduced through the plea agreement to manslaughter. His family informed the prosecution that they could forgive him.

12. The accused pleaded guilty to the facts and was convicted accordingly.

13. Ms Murunga for the accused was a first offender. However considering the manner in which the offence was committed the state was proposing fifteen (15) years imprisonment. That the accused had cut his brother’s throat, and waited to confirm that he was dead. Though the family had forgiven him, they were not ready to receive him at home, and wanted him to serve a proportionate sentence.

14. In mitigation Ms Sabaya for the accused submitted that the accused was nineteen (19) years old when he committed the offence, that he had surrendered to the police and had cooperated with the police. She made reference to the probation and aftercare services (PACs) social inquiry report, dated February 24, 2021 which indicated that the accused had grown devoid of parental care and guidance, as the parents separated when he was very young and he was bounced from one family to another. Each parent was engaged in their own business, the father being in South Africa, the mother in Nakuru.

15. According to the accused’s confession he had been threatened with death if he had not done deed. That he was also a victim, having been exposed to alcohol at an early age, it was believable that he felt that both his life and that of his mother were at risk as according to him Peter had told him if he had not killed Charles, he and his mother would be killed..

16. That there was no justification for what he did, but that the court ought to consider all the facts, the accused's exposure to alcohol, his poor upbringing, the threat to his life and conclude that he acted under duress.

17. Counsel urged the court to take into consideration that he had been in custody for 2 years. That the accused had proposed a one year custodial sentence, that he was ready to be committed to Kamiti Youth Corrective Centre where he could learn a skill. She urged the court to include orders of mandatory counseling and therapy sessions for him and his mother for healing and reconciliation. That thereafter he would be reintegrated back to society. She submitted he was seeking the court’s leniency.

18. A pre-sentence report dated July 1, 2022 was filed in court. The report stated:“Circumstances of the offenceHe admits the commission of the offence as charged after arrest and during plea bargain. He alleges he had conflict with his brother who is the victim in this case over joining him to work at the public service vehicle (matatu) stage where he worked. He further narrated that the victim stole some money from the public service company and due to bitterness one Peter Gikonyo a workmate of the victim approached the accused while in a drunken stupor to kill his brother with a promise of half a million shillings and also threatened him with dire consequences if he fails to actualize the same.Attitude towards the offenceRegretful pleads for leniency, stating he committed the offence under the influence of a cocktail of third generation whisky and bhang use. While in drunken stupor was negatively influenced. He stated he is ready to pay for the offence preferably a mix of custodial and non-custodial sentence.Victim(s) or close relatives’ concerns (victim statement)The victim is the elder brother of the accused person. The entire family is very angry at him. They also fear him for they strongly believe that the accused was introduced to devil worship and hence involved himself in such bizarre acts. They fear he might continue subjecting other family members to such murders. He has become an outcast in the familyThis is an indication there is no goodwill, as during our inquiry it come out clearly that healing has not been achieved ... The mother of the accused stated she participated in the plea bargain negotiation and had no problem and justified that this action was merely trying to avoid the issue of double tragedy in the family.

19. The probation and after care officer recommended that the sentence be deferred to give probation and aftercare services the opportunity to work “on family dynamics in relation to the fears they have concerning their kin…”

20. Counsel for the accused submitted this report. She told the court that she was withdrawing the KYCTC request, that they were opposed to the request to defer sentence on the reasons given by the PACs officer, that this was a family that had never been involved in the accused’s life, and the request by the PACs officer was not good for the accused as it would amount to putting his life on hold. Counsel submitted that the accused had instructed her that he had skills in barbering, he had one room in Nakuru away from the place where the offence was committed, where he could carry out his business and fend for himself. He was now seeking a non-custodial sentence.

21. Having taken into consideration the foregoing, the only issue is what is the appropriate sentence.

22. According to the Penal Code section 205 a person convicted of manslaughter is liable to imprisonment for life. The length of the sentence will definitely be determined by the circumstances of the offence.

23. To arrive at an appropriate sentence the court is required to consider both the aggravating and mitigating circumstances.

24. The PACs report paints the picture of a youthful offender with a troubled past, poor upbringing in a dysfunctional family. He accepts that he did kill his brother but through the pressure of a third party.

25. The accused alleged to have been threatened, however it is evident from the facts that there was the promise of some Kshs 500,000/= he killed his brother.

26. On the aggravating factors; Nothing from the facts shows that the alleged threat to his life or the life of his mother was imminent or real. The manner in which he committed the offence is chilling:-“….I started the assignment by stabbing the throat, and cut the throat completely where he started bleeding and fell down. I dragged him on the floor where I hit his nerves [above the ankle on both legs] as directed. After ensuring that he was dead I left him and locked the door from outside…”

27. The post mortem shows that the cause of death was;“Shock due to blood loss due to sharp force trauma to the neck on a body with amputated private organs/stab wound on the chest.”

28. The manner of killing his own brother for the reason he gave, and in the manner indicated presents the case of an accused who needs no provocation to kill another person. He needs time for rehabilitation and to come to terms with the weight of what he did.

29. The Criminal Procedure Codeat section 137I provides for the process of sentencing after a plea agreement.Address by parties(1)Upon conviction, the court may invite the parties to address it on the issue of sentencing in accordance with section 216. (2)In passing a sentence, the court shall take into account—(a)the period during which the accused person has been in custody;(b)a victim impact statement, if any, made in accordance with section 329C;(c)the stage in the proceedings at which the accused person indicated his intention to enter into a plea agreement and the circumstances in which this indication was given;(d)the nature and amount of any restitution or compensation agreed to be made by the accused person.(3)Where necessary and desirable, the court may in passing a sentence, take into account a probation officer’s report.

30. The accused person seeks a combination of both custodial and non-custodial sentences. The state asks for fifteen (15) years. The court retains the discretion in sentencing and is guided by section 137I.

31. The accused took plea in January 2021. The victim impact statement clearly demonstrates the sentiments of his family. The forgive him, they fear him and fear for him, and at the same they don't care what happens to him but also want him punished for what he did. There are simmering wounds here. He decided to propose the plea agreement early in the proceedings as he had already confessed to the killing.

32. I have considered the probation officer’s report. There are unresolved issues that will need to be addressed post this matter. The sentence and any accompanying orders ought to take that into consideration.

33. The gravity of manner in which the murder was committed requires that the accused gets time to deal with what he did. This can only be done in custody as it is evident he did not need much persuasion to kill his own brother. Time to serve his punishment, time to get his healing, time to mend his relationships. His family is not available for him and a non-custodial sentence is not appropriate in the first instance.Weighing all these against the life sentence that the accused is liable to serve under section 205 of the Penal Code, it is my considered view that a sentence of twenty (20) years imprisonment is commensurate with the offence committed by the accused person.

34. The accused is sentenced to serve twenty (20) years imprisonment with effect from January 14, 2021.

35. In addition, the Kenya Prisons Service is to ensure that the accused person undergoes mandatory counseling/therapy sessions for the purpose of dealing with the issues that have arisen out of his dysfunctional family upbringing.

36. Probation and after care services (PACs) is directed to assist the family to obtain the necessary guidance and counseling, so as to keep a connection between the accused and his family, for the purpose of ensuring that at the end of the term of imprisonment, the accused and his family will be in a position to live in harmony, to foster restoration of the family relations.

37. This order is served on PACs and the officer in charge Nakuru GK Main Prison.

38. Orders accordingly.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF SEPTEMBER, 2022. Mumbua T MathekaJudgeIn the presence of;Court Assistant JenniferMs Murunga for stateAccused present