[2023] KEHC 23970 (KLR)
The court exercised its discretion under section 205 of the Penal Code, considering the accused's advanced age, remorse, reconciliation with the victim's family and community, and the recommendation of the probation officer. The court found that the accused, a first offender, had already suffered significant...
Source-derived case information.
- Citation
- [2023] KEHC 23970 (KLR)
- Parties
- Applicant: Republic; Defendant: James Mwangi Wandaka
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 48 of 2017
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- Accused placed on probation for a period of 3 years.
- Judges
- RB Ngetich
- Legal Topics
- Manslaughter, Sentencing Discretion, Probation Orders, Mitigation, First Offender, Family Impact
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
James Mwangi Wandaka
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused should be sentenced to a custodial or non-custodial sentence for manslaughter.
- 2 What mitigating factors should influence the sentence imposed on the accused.
Ratio Decidendi
The court exercised its discretion under section 205 of the Penal Code, considering the accused's advanced age, remorse, reconciliation with the victim's family and community, and the recommendation of the probation officer. The court found that the accused, a first offender, had already suffered significant consequences, including estrangement from his children and incarceration. The strained relationship between the accused and the deceased, the forgiveness extended by the family and community, and the positive steps taken towards rehabilitation were decisive. The court concluded that a non-custodial sentence would best serve justice and facilitate the accused's reintegration into...
Court Disposition
Accused placed on probation for a period of 3 years.
Orders
- Accused placed on probation for a period of 3 years.
- Right of appeal within 14 days.
Full Case Text
Judgment text and source record
29 paragraphs
Republic v Wandaka (Criminal Case 48 of 2017) [2023] KEHC 23970 (KLR) (19 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23970 (KLR)
Republic of Kenya
In the High Court at Kabarnet
Criminal Case 48 of 2017
RB Ngetich, J
October 19, 2023
Between
Republic
Prosecution
and
James Mwangi Wandaka
Accused
Ruling
1. By judgment delivered on July 24, 2023, this court found the accused guilty and convicted him for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. Particulars were that on the 9th day of November, 2015 at Maji Mazuri village in Koibatek Sub- County within Baringo County the accused unlawfully killed Alima Muthoni.
2. Upon conviction, the court directed the probation officer to prepare social enquiry report which was indeed filed on the 19th September, 2023.
Pre-sentence Report 3. The Report show that the accused is aged 65 years old, he is married with two wives. The first wife who is separated from accused lives in Nairobi and has six children who are independent. The second wife to the accused who is the deceased herein had five children with the convict.
4. The accused prays for leniency from court and says he did not intent to kill his wife but acted out of self-defense. He regrets having committed the offence and attributes to his state of being drunk and angry. He prays for non-custodial sentence based on his age and the need to continue taking care of his children who lost their mother.
5. The family members interviewed said the incident has had an impact in the relations amongst the larger family but over the years, the magnitude of the effect has reduced. The children of the accused and the deceased who are of mature age said they have missed parental touch since their mother’s life was taken away and their father has been in custody for a long time. They said with time they have been able to gather as the children of the victim and the accused and agreed to forgive their father. From the report, the church elders and the Pastor of Discipleship church and a few members of the community performed cleansing prayers at the home of the deceased and they have since forgiven their father and prayed for a non-custodial sentence.
6. The area administrator stated that the accused has been a very hardworking man within his community and he knew the victim as a member of discipleship church and had not heard of any differences between the two.
7. The Probation Officer’s view is that home rehabilitation is conducive for re-integration of the accused and recommended probation sentence for a period of 3 years.
Mitigation 8. Ms Wangari holding brief for the defence counsel Mr. Waiganjo mitigated on behalf of the accused. She submitted that she has seen the pre-sentence report which has captured the main aspects that relate to the accused. She further submitted that the accused is remorseful, has reconciled with the family of the deceased and the community who now have a good report of the accused. She prayed that the court considers the contents of the report in determining appropriate sentence.
Determination 9. Under section 205 of the Penal Code a person convicted of Manslaughter is liable to imprisonment for life. However, the court has discretion to impose a more lenient sentence depending on circumstances of each case.
10. I have considered accused’s mitigation through defence counsel. I have also considered the sentiments of the deceased’s family and of the accused. I also take note of the fact that accused is a first offender. Presentence report and evidence adduced show that the relationship between the accused and deceased was strained for a long time. The accused said they slept in separate rooms, never talked to each other, he is a first offender and there existed fights among them resulting in his ear being cut by deceased in one incident. The emotions and anger against each other had built for a long time. Their children have suffered as a result of the difference which led to death of one parent and incarceration of the other.
11. I however note that positive steps have been taken by the children, church and community to assist the family members forgive each other and they are willing to receive the accused back. The accused is aged 65 years, he is remorseful and regrets his actions. In view of the above, I am inclined to impose a non-custodial sentence.
12. Final Orders:
1. Accused placed on probation for a period of 3 years.
2. Right of appeal 14 days.
RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNETTHIS 19TH DAY OF OCTOBER 2023. ..........................................RACHEL NGETICHJUDGEIn the presence ofMr. Karanja - Court Assistant.Ms Wangari for accused.Accused present.Ms Ratemo for State.