[2022] KEHC 3294 (KLR)

Republic v Nyakundi (Criminal Case E023 of 2021) [2022] KEHC 3294 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3294 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E023 of 2021

TM Matheka, J

July 8, 2022

Between

Republic

Prosecution

and

Elijah Nyairo Nyakundi

Accused

Ruling

1. The accused Elijah Nyairo Nyakundi was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on the 20th April, 2021 at Lower Solai in Rongai Sub-County within Nakuru County he murdered Dominic Mokaya Nyakundi.

2. He took plea on 19th May, 2021 and he pleaded not guilty. Subsequently, pursuant to section 137A of the Criminal Procedure Code which provides: Plea agreement negotiation(1)Subject to section 137B, a prosecutor and an accused person or hismrepresentative 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; the parties entered into a plea agreement.

3. On 7th June, 2022 the accused person pleaded guilty to the lesser charge of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.

4. The facts of the case as read by the prosecution counsel were that on 22nd April, 2022 at 5. 00 p.m. the deceased went to his house with a friend where they met the accused who was his brother and living with him. The deceased asked the accused about the firewood that he had left in the house and the accused answered that he had sold it and used the money. The deceased got angry and began to beat the accused, packed his clothes and threw him out. The accused refused to leave and the deceased rushed outside to pick a Panga. On seeing that, the accused ran away. The deceased followed him, picked a jembe and wanted to hit him but the accused disarmed him of the Jembe and hit him with it on the head. The deceased fell down and was rushed to the hospital where he was pronounced dead on arrival.

5. The accused was later arrested and charged with Murder which was reduced to Manslaughter pursuant to a plea bargain agreement.

6. The Post Mortem Report revealed that the cause of death was as a result of severe head injury attended by subdural hematoma and brain contusion due to single blunt force trauma to the head in keeping with fatal assault.

7. The Post Mortem Report, a Jembe and grey t-shirt were produced as P. exhibits 1, 2, and 3 respectively.

8. The accused person pleaded guilty to both the charge and the facts. He was convicted on his own plea of guilt.

9. There were no previous criminal records of the accused and the prosecution proposed three (3) years non-custodial sentence.

10. In mitigation Ms Moenga advocate for the accused, submitted that the deceased and the accused were brothers. That the accused is remorseful and he never intended to kill the deceased. His family is ready to accept him and he has been in custody since the time of the arrest. She pleaded for leniency.

11. The pre-sentence report on record is favorable to the accused person. It shows that he is remorseful and regrets his actions. He is married with two kids and he is known as a peaceful and hardworking man. The accused mother believes that the accused never intended to kill his deceased’s brother. The accused is a young man currently aged 21 years old and his family, community and the local administration are not opposed to him being granted a non-custodial sentence.

12. Manslaughter is defined under Section 202(1) of the Penal Code as;“any person who by an unlawful act causes the death of another person is guilty of the felony termed manslaughter.”

13. Section 205 provides that any person who commits the felony of manslaughter is liable to imprisonment for life.

14. According to in the Supreme Court Petition No. 15 and 16 (Consolidated) of 2015 Francis Karioko Muruatetu & another vs Republic(2017) eKLR the following guidelines ought to be considered before sentencing. Age of offender.

Being a first offender

Whether offender pleaded guilty

Character and record of the offender.

Commission of the offence in response to gender-based violence.

Remorsefulness of the offender.

The possibility of reform and social re-adaption of the offender.

Any other factor that the court considers relevant.

15. What is clear from the facts of this case is that the accused did not have the intention of committing the crime and even the deceased triggered the events that led to same. The accused has pleaded for a non-custodial sentence. His presentence report recommends for the same and shows that accused family & community are not opposed to the accused person being granted a non-custodial sentence.

16. The accused is a first time offender, genuinely remorseful. He is a young man who should be given a second chance at life. Considering all these factors and the fact that the accused has been in remand for the last one year, I am of the view that a non-custodial sentence of a three years’ probation supervision is merited.

17. I order therefore that he be placed on probation Supervision for three (3) years during which period he will abide by the Probation Order.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8THDAY OF JULY, 2022MUMBUA T MATHEKAJUDGECA EdnaMr. Kihara for StateMs. Moenga for Accused