[2022] KEHC 10045 (KLR)

Republic v SM (Criminal Case 47 of 2015) [2022] KEHC 10045 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10045 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 47 of 2015

EM Muriithi, J

May 12, 2022

Between

Republic

Prosecution

and

SM

Accused

Judgment

1. The accused was convicted for the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code, upon a plea bargain agreement which reduced the initial charge of murder to one of manslaughter.

2. The facts of the case set out by the prosecution and admitted by the accused by the plea agreement are as follows:-“FACTSOn the May 23, 2015 at KK Aaru village the accused person, in a fit of rage beat up his daughter BM threatening to kill her. This prompted her to flee and seek refuge at her grandmother's home. On the same day the accused person also chased his wife, AK, away from their home. On the following day, May 24, 2015, the accused person proceeded to his mother's home where his daughter had sought refuge whereby he wanted to take his daughter back. The accused person's mother, LK refused to hand the child over owing to the events of the previous day fearing for the safety of the child. This made the accused person furious and he threatened to kill his mother if the child was not returned to him prompting her to surrender the child to the accused person.On May 25, 2015 LK called AK to ask how BM was fairing on but she said she was not at their home as she had been chased away by her husband. LK then sent his other son, T to go and see how her granddaughter was doing but on reaching the accused persons home, there was no sign of her with the accused person only saying that he had hid her. The family members continued to look for her everywhere else to no avail.OnMay 27, 2015 neighbours and other villagers joined in the search and it was on the May 28, 2015 that they confronted the accused person demanding that he tell them the whereabouts of the missing child and they also searched the accused person's property.It was only until the May 29, 2015 as the search continued in the accused person's property that the search party became curious of fresh soil deposits that they saw at the accused person's pit latrine. On removing the soil the villagers encountered a foul smell emanating from inside the pit latrine. On suspecting that the foul smell could be from be from the body of BM, the villagers escorted the accused person to Athiru Ruujine AP Camp where police officers from Laare Police Station took over the matter.The police officers visited the scene immediately whereby the pit latrine was dug therein the body of BM was found. Post mortem was conducted at Meru Level 5 Hospital whereby the cause of death was found to be multiple stab wounds and fracture of the maxilla.”

3. In mitigation counsel for the Accused, Mr. H. Kirimi, urged the Court to consider the accused’s position that while he was remorseful and regretted his action, he had not been in his right mind when the incident happened, citing a psychiatrist report of July 9, 2015 indicating that he was not fit to plead as he had a mental disorder. He further urged that the accused had been in custody since 2015 which was sufficient punishment and that if the court still wished to punish him further to consider a non-custodial sentence to allow him to provide for his children. Pleading to continue with his medication so that he does not relapse.

4. The DPP’s Ms Kitoto urged that the accused was a first offender and left the matte of the sentence to court.

5. The court had during the plea bargain agreed proceedings called for an updated psychiatric assessment in view of the previous reports of disorder and by a report dated March 24, 2022, the psychiatric confirmed that SM suffered a mental disorder and he has been on treatment since 2015 to 2018. He has fully recovered and he is currently of sound mind and fit to plead/stand trial long term follow up by a mental health specialist is required.”

6. The court was not able to hold that the accused was of unsound mind in terms of Section 12 of the Penal Code, as no evidence was available as to the circumstances as at the time of the offence, save what was set out in the Facts of the case admitted by the accused under the plea bargain agreement. The plea bargain of course denied the prosecution opportunity to prove that he was of sound mind in a full trial for the offence of murder initially charged.

7. The offence took place on May 24, 2015 and upon examination on presentence on July 9, 2015 after he was charged with the offence of murder, the mental status of accused was described as follows:-“Patient suffers from mental disorder called schizophrenia. Treatment initiated. Regular follow up by a psychiatric is required. He is currently not fit to plead.”

8. On June 16, 2016, when the accused was reexamined it was certified that:-“Patient suffers from a mental disorder called Schizophrenia disorder. It is a chronic relapsing mental disorder but it is currently well controlled with medication. He is currently of sound mind and he is fit to plead.”

9. While the court had no evidence that the accused was of unsound mind at the time of the offence, which would affect his criminal responsibility for the offence, the court is, in view of the report of history of disorder about the time of the incident subject of the offence, ready to accept that his responsibility may be diminished to the extent of his “chronic relapsing mental disorder.”

10. As held in R. v. John Gitonga Koome, Meru HCCRC No. 10 of 2018, I find an imprisonment sentence for 6 years to fit the circumstances of the offence of manslaughter in this case.

Orders 11. Accordingly, for the reasons set out above, the court having convicted the accused on his own plea of guilty for the offence of manslaughter c/s 202 as read with 205 of the Penal Code, sentences the accused to imprisonment for six years commencing, pursuant to section 333(2) of the Criminal Procedure Code, on June 17, 2015 when the accused was first remanded to await his trial.

12. As the accused has already been in custody for over 6 six years since remand on June 17, 2015, he has served his full sentence and there shall, therefore, be an order for his immediate release unless he is otherwise lawfully held.Order accordingly.

DATED AND DELIVERED THIS 12TH DAY OF MAY 2022. EDWARD M. MURIITHIJUDGEAppearances:Mr. H. Kirimi, Advocate for the Accused.Ms. Kitoto, Prosecution Counsel for the DPP.