[2017] KEHC 718 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL CASE NO. 18 OF 2016

REPUBLIC...................................PROSECUTOR

VERSUS

SAMUEL KARIUKI KANDE............ACCUSED

SENTENCE

1. On 28/06/2016, I convicted the accused person, Samuel Kariuki Kande (“Accused Person”), with the offence of manslaughter contrary to Section 202 as read together with Section 205 of the Penal Code. This was after a fully-fledged trial in which the Accused Person had been charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. He was charged with killing Moses Macua Kamande on 08/09/2015 at Backyard Bar along Eastern Bypass within Ruiru Sub-county within Kiambu County.

2. In a judgment dated 28/06/2017, I found that the Prosecution had not proved the necessary element of pre-meditation to elevate the conviction to murder and, consequently, convicted the Accused Person of the lesser but cognate offence of manslaughter. I then scheduled the case for a sentencing hearing and invited the Victim’s family to address me or file a Victim Impact Statement if they so wished.

3. The Victim’s family elected to come to Court and address me and the Accused Person. On the scheduled sentencing hearing date, the Victim’s widow, Ms. Nancy Wambui Macua, as well as her two daughters – Ms. Rachel Macua and Ms. Elianor Macua – addressed the Court. They each expressed the anguish of losing their husband and father. Ms. Nancy Macua explained the financial impact of the death and the difficulty she has had educating her children after the death of her husband.

4. Ms. Rachel Macua passionately addressed the Court of the economic, psychological and social impact of the death of her father. She narrated how the trial process had affected the whole family in myriad ways – including the fact that the whole family’s business has to come to a standstill during scheduled hearings of the case. Psychologically, she addressed the Court about the impact on their little brother who is barely seven – and the difficulty in explaining to him what happened to his father and having him keep his belief in humanity.

5. Ms. Elianor Macua spoke fondly of the times she spent with her father and how much she will miss him. Her father was her friend and mentor: he would wake them up at night to tell them stories; he would bring them nyama choma; he would bring them surprises. She is desolate that her friend and mentor will never walk through the door again – all because the Accused Person took a knife and stabbed him.

6. Ms. Maari, for the Prosecution, called for maximum sentence. She thought that the circumstances were aggravated: the Accused Person knew the Deceased; he knew the Deceased had been drinking and had no excuse for over-reacting like he did in the circumstances. Ms. Maari claimed that the Accused Person was not a first offender. However, records produced showed that the Accused Person has not been previously convicted of any other offence and I must, therefore, treat him as a first offender.

7. On his part, the Accused Person told the Court that he was remorseful; that he had no dispute with the Deceased who was his customer for a long time. He sought the forgiveness of the family. The Accused Person told the Court that he has a wife and two children of tender years – nine and five years old. He pleaded with the Court to give him a non-custodial sentence and reminded the Court that he had faithfully kept his bond terms during the pendency of his case.

8. Ms. Martin, the advocate for the Accused Person also addressed the Court and filed written submissions in mitigation. On behalf of her client, she sent condolences to the family of the Deceased who were in Court. She noted that the judgment had explained the circumstances of the death of the Deceased while explaining why the element of premeditation could not be established. She recalled that the Accused Person had not planned an attack on the Deceased and that he was not the aggressor.

9. Ms. Martin cited two cases in urging the Court to grant a non-custodial sentence. In Carolyine Akoth v Republic [2016] eKLR, the Deceased had attacked the Appellant in the Appellant’s shop leading to a fight. During the fight, the Deceased bit off the Appellant’s breast leading the Appellant to pick up a stone and hit the Deceased on the head. The Deceased died 20 days later. The Learned Judge on appeal set aside the five year sentence imposed by the Trial Magistrate and instead sentenced her to two years probation.

10. In Philip Muthiani Kathiwa v R [2015] eKLR, the Accused Person shot the Deceased with an arrow when the Deceased attacked the Accused Person’s mother and sister armed with a whip and Somali sword. In the process, the Deceased had cut the Accused Person’s sister in the arm. The Learned Judge considered that the Accused had been in custody for two years and six months and granted a non-custodial sentence. The Learned Judge noted that it was the Deceased who had provoked the attack and that the Accused Person merely responded to the attack.

11. I have considered these cases as well as the other cases cited by the Learned Judges. I find that the two cases are distinguishable in the level and intensity of attack and aggression by the Deceased Persons in provoking the attacks in the two cases as well as the circumstances of the attack. In both cases, the attacks were vicious and led to actual injury to a person hence provoking aggressive responses from the Accused Persons. Here, other than the verbal vituperation, the Deceased, who was in a drunken state, merely punched the Accused Person. In the instant case, also, the Accused Person had the knowledge that the Deceased was drunk as he was his customer. The Accused Person’s obligation to be more measured was, therefore, called for by the circumstances.

12. Sentencing is an individualized process where I am required to consider all the mitigating and aggravating circumstances as applied to the specific circumstances of the case in order to fashion an appropriate sentence that is fit to the offence and circumstances. I have considered the following four mitigating factors.

13. First, the Accused Person was not the aggressor although he responded with unjustified deadly force. It cannot, therefore, be said that he was gratuitously violent or malicious in inflicting the stab wound on the Deceased.

14. Second, the Accused Person is a first offender.

15. Third, the Accused Person expressed remorse. He sought forgiveness from the family of the Deceased. I formed the opinion that he was sincere in his remorse.

16. Fourth, I have also considered his family situation. The Accused Person is a relatively young man with a young family which includes two young children.

17. These mitigating factors must be balanced with aggravating circumstances to arrive at an appropriate sentence. I have considered the views of the family of the victim as outlined above. I treat them, for sentencing purposes, as aggravating circumstances. I have also considered the post-offence conduct of the Accused Person.

18. One of the objectives of sentencing is to ensure that justice is done by ensuring that absent exceptional circumstances, there is no disparity: same offences should attract similar consistent penalties. In his survey of case law in Philip Muthiani Kathiwa v R [2015] eKLRJustice Muriithi concluded that a case of manslaughter where mitigating and aggravating circumstances balance or cancel each other out such as this one and where the Judicial Officer has concluded that a custodial sentence is the appropriate sentence, it should attract a sentence of three and a half years imprisonment.

19. In this case, I have come to the conclusion that a custodial sentence is merited given the circumstances which I have outlined above as the only suitable way of expressing society’s condemnation of the Accused Person’s conduct or deter similar conduct in the future. Having noted the family’s views and having considered all the mitigating circumstances, I am of the view that a custodial sentence of three-and-a-half years is the appropriate sentence

20. Consequently, in my view, a fit sentence that properly balances the mitigating circumstances with the aggravating circumstances is a sentence of three-and-a-half (3. 5) years imprisonment. Accordingly, I sentence the Accused Person to three-and-a-half (3. 5) years imprisonment. Since the Accused Person has been in custody since his date of conviction, the term of imprisonment shall be computed starting on that day, that is, on 28/06/2017.

21. Orders accordingly.

Dated and delivered at Kiambu this 5th day of September, 2017.

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JOEL NGUGI

JUDGE