[2017] KEHC 2586 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCR NO. 24 OF 2017

(FORMERLY ELDORET HCCR NO. 74 OF 2014)

REPUBLIC……………………………………………………………………..PROSECUTOR

VERSUS

RICHARD CHEMJOR KAKUKO………………………………………………..ACCUSED

JUDGMENT

1. The accused pleaded guilty to a charge of manslaughter contrary to section 202 as read with 205 of the Penal Code following a plea bargain agreement dated 27th June 2017 which reduced the original charge of murder to manslaughter. The court accepted the ground of lack of intention by reason of provocation as a basis for the plea agreement.

2. On examination of the accused on oath, the Court ascertained that the accused was fully aware of his right to a full and fair trial of the charge of murder which he initially faced and that he had voluntarily chosen to plead to a lesser charge of manslaughter, having seen the Doctor’s report on the accused’s fitness to plead.

3. The facts of the case as presented by the Prosecution and accepted by the accused were as follows:

“FACTS

7. The accused and the deceased in this matter were husband and wife. Sometimes in the month of May 2014, the accused left his area in Chepkeu village and went to work in Mogotio. He returned in the month of September the same year and received news that a man by the name Chesire Yatich had befriended her wife Agnes Ringoi, the deceased. Since then the accused and the deceased used to argue almost every day and on the 2nd day of November 2014, the accused went to the homestead of one Elijah Chelang and found the deceased there together with other people. She was drunk at the time. An argument ensued between the deceased and the accused who was holding a panga cut the deceased on the neck where she died instantly. The accused did not run away and stayed at the same spot until he was arrested by officers from Bartabwa DO’s office and rearrested by officers from Kabarnet police station. He was taken to court and charged with the offence of murder which has now been reduced to manslaughter. The body of the deceased was collected by the police and taken to Kabarnet District Hospital Mortuary. The postmortem was conducted on 8th of November 2014 and the doctor formed an opinion that the cause of death was decapitation with severe hemorrhage which is incompatible with life. The accused person was thereafter presented before the doctor at Moi Teaching & Referral hospital for mental assessment who confirmed he was mentally fit to stand trial.”

4. The accused responded to the facts in Kiswahili – saying “niukweli” translated to “it is the truth”, and the Court accepted the plea of guilty and convicted the accused on his own plea of guilty.

5. The Prosecution said the accused was a first offender and the Court directed a pre-sentencing report from the Probation Office. The Probation Officer, Baringo North Sub-County, Mr. Ngocoi M. J. in a report dated 24th August 2017 having considered the circumstances of the case and interviewed the deceased and the accused’s families and the local administration recommended that non-custodial sentence was inappropriate in that:

“[T]he accused is aged 40 years and he has no previous conviction. He pleads the court to treat him with leniency to take care of his children. Social inquiry revealed that the deceased’s family is still bitter over the loss and the promise [to engage in reconciliation by paying dowry and performing a cleansing rite] that the accused’s family failed to keep. The local administration noted a prior animosity between the two families which was partly resolved for the funeral to take place. Both indicate that they had planned a further reconciliation which was to take place after the funeral but not taken place until the time of this enquiry. The deceased’s father strongly opposed his rehabilitation within the community.”

6. In mitigation the counsel for the accused, Mr. Marube, urged that:

“In mitigation, the accused is remorseful. For the act that led to the death of his wife. A life has been lost. The accused will live with the memory throughout his life. The couple had 5 children. We pray that the court considers that there is only one parent to the 5 children. The action after the event that he never tried to run and hide and even today he has pleaded guilty. We request that the accused be treated as a first offender. He has been in custody since November 2014 and the Court should take that into account and grant him a non-custodial sentence.”

7. Having convicted the accused, the Court must now determine the appropriate sentence for the offence in the circumstances of this case.

Determination

8. Although the act of adultery may be taken as provocation for an accused who kills his adulterous spouse, the fact that the accused did not act in the heat of the moment after catching the spouse in flagrante delicto,or in the very act of wrongdoing,but rather after a quarrel upon finding the deceased at another’s home with other people while drunk and an argument ensued, does not support a finding of killing under the otherwise extreme provocation of infidelity. There was however lack of intention as the killing followed an argument between the two spouses.

9. In assessing the blameworthiness of the accused for the killing for purposes of sentencing, the Court considers that the accused and the deceased used to argue almost every day on account of the deceased befriending another man and that the accused did not set out to Chelanga’s home to pick a fight with the deceased but rather found her there with other people drunk and an argument ensued.

10. The accused has to his credit pleaded guilty to the lesser charge of manslaughter without the necessity of undertaking a full trial for the offence of murder. He has shown remorse right from the time of the act of killing in that he “cut the deceased on the neck where she died instantly [and] [t]he accused did not run away and stayed at the same spot until he was arrested by officers from Bartabwa DO’s office and rearrested by officers from Kabarnet police station.” The Court has also considered that the accused has 5 children to take care of.

11. However, killings among lovers, former lovers and their associates fuelled by drunkenness at drinking parties held freely at many homes in the communities of this region have become very common. Marital disagreements or quarrels in other social settings should not result in the death of one or other party. The Court must help culture a civilised society where disagreements and conflicts are resolved in accordance with the rule of law, and it is, consequently, in public interest to pass a deterrent sentence.

12. As regards the deceased’s family’s claim to dowry and cleansing rites, which was the Probation Officer’s ground for finding non-custodial sentence as inappropriate, the same may be pursued in the civil process of the court as the criminal proceedings herein does not prejudice any civil liability, and vice versa. See section 193A of the Criminal Procedure Code which provides as follows:

“193A. Concurrent criminal and civil proceedings

Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.

[Act No. 5 of 2003, s. 79. ]”

Failure to meet civil claims related to a criminal offence cannot be used to deny an accused his rights under the criminal process, or to impose harsher punishment, as that would amount to criminally punishing the accused for breach of civil obligations.

13. I think that a sentence of imprisonment for a term of five (5) years meets the justice of the case as it would enable the accused shortly to leave prison and take care of their five children.

Orders

14. Accordingly, for the reasons set out above, upon conviction of the accused on his own plea of guilty for the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code, I sentence the accused to serve an imprisonment term of five (5) years.

15. The sentence shall, in accordance with the Proviso to section 333 (2) of the Criminal Procedure Code, shall be reckoned from the date of his arrest and detention on the 2nd November 2014.

DATED AND DELIVERED THIS 2NDDAY OF NOVEMBER 2017.

EDWARD M. MURIITHI

JUDGE

Appearances: -

Mr. Marube, Advocate for the Accused

Ms. Macharia, Ass. Director of Public Prosecutions.