[2024] KEHC 3885 (KLR)

Republic v Otsemba (Criminal Case E025 of 2023) [2024] KEHC 3885 (KLR) (8 April 2024) (Sentence)

Neutral citation: [2024] KEHC 3885 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E025 of 2023

RN Nyakundi, J

April 8, 2024

Between

Republic

Prosecutor

and

Barbra Mutonye Otsemba

Accused

Sentence

1. The convict in this matter was initially charged with offence of murder contrary to Section 203 as read with 204 of the Penal Code. She pleaded not guilty and in the course of the proceedings not yet commenced for trial to prosecute the convict plea bargaining negotiations were initiated as between the state and the defendant. This culminated into the state giving in to an amended information to have the convict plead to a lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal code. The specifics are that you Barbra Mutonye Otsemba on unknown date in the month of October, 2023 at Kabongo area in Kapseret sub-county within Uasin Gishu County in the Republic of Kenya unlawfully caused the death of Junior Nasan Outsets. Having pleaded so guilty to the offence of manslaughter a plea bargaining agreement was endorsed on 13. 3.2024 by both the state and the convict in this case. The import of the plea bargaining agreement is that the convict Barbra was convicted of the offence of manslaughter contrary to Section 202 as punishable in Section 205 of the Penal Code. In support of the case for the prosecution, a statement recorded by the convict was admitted in evidence and also the post-mortem report dated 14. 11. 2023.

2. At the sentencing stage Mr. Ayora legal counsel for the convict placed before court mitigation on remorse and regret of the offence having taken place in the hands of the convict culminating into the death of the deceased. According to counsel Mr. Ayora this was a case where the convict suffered post-delivery depression and explored thoroughly by the court it should contribute to a just and fair sentence in this matter. On the part of the state Mr. Mugun submitted that the convict is a first offender and the aggravating factor being that the deceased died unlawfully not from a third party but his own biological mother.

3. The courts consider specific factors in traditional approach to sentencing, which is the seriousness of the crime, the personal circumstances of the offender and the interest of society. The court must consider these factors in conjunction with the purpose of punishment, which comprises of refractive, deterrent, rehabilitative, and restorative element, and the need for incapacitation, to determine and appropriate sentence. Courts must consider all the relevant factors in sentencing to give effect to the fair trial rights of offenders. However, the factual circumstances of different cases differ, leading to the exercise of the sentencing discretion, which is often the most challenging part of any criminal trial.

4. The court recognises that the circumstances surrounding in individual offences can vary greatly and that is so even before one comes to consider the circumstances of this individual offender. There are just too many variables in terms of each unique convict before the court and that makes it very difficult for the exercise of discretion be tailored towards uniformity of sentences.

5. The court notes that the convict is a Ugandan National with no fix aboard in Kenya. During her domicile within the country she happened to have entered into a human relation which culminated in the birth of the victim, in circumstances, which are captured in her confession statement and thereafter in the plea bargaining agreement. The convict was a casual labour at Ngeria in Uasin Gishu burning charcoal for sale. It is at that season she cohabited with one Haron and out of that relationship the deceased was born. Apparently, Haron married another wife leaving the convict at home with no provisions for her or the child. The fact that both of them had no support from the bread winner and being a foreigner in a foreign land she lacked the necessary social support system in absence of any family heritage to run to for assistance. It follows that the only alternative remedial action was to terminate the right to life of his only child born in a relation with Haron. Therefore, I consider it to be clear enough that there are suggestive compelling circumstances to be found in the confession statement on the facts of this particular case.

6. What do I have in this case, is a plea of guilty and submissions by learned counsel Mr Ayora on mitigation based on the confession statement and instructions which may have been shared by the convict as his client. Having said so, I take the position. A guilty plea does not necessarily translate into remorse where the state has an open and shut case against the offender, in which situation the rendering of a guilty plea may not be genuine, but self-serving. In other instances, guilty pleas tendered where the evidence is overwhelming may not signify genuine remorse, and may not mitigate the sentence. It is in the foregoing premises I sentence the convict to 6 years imprisonment with a commencement date of 20. 11. 2023 pursuant to Section 333(2) of the Criminal Procedure Code.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 8TH DAY OF APRIL 2024. .............................R. NYAKUNDIJUDGE