[2022] KEHC 16566 (KLR)

Republic v Wanyungo (Criminal Case E029 of 2021) [2022] KEHC 16566 (KLR) (11 November 2022) (Sentence)

Neutral citation: [2022] KEHC 16566 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E029 of 2021

DK Kemei, J

November 11, 2022

Between

Republic

Prosecutor

and

Jared Mabonga Wanyungo

Accused

Sentence

1. Jared Mabonga was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on the night of the 22nd and July 23, 2021 at Makutano village in Bumula Sub- County within Bungoma County, he murdered Elizabeth Nafula Makhanu. After a full trial, he was subsequently found guilty and convicted therefor vide the judgement of this court dated May 5, 2022.

2. The prosecution is represented by Miss Mukangu while the defence is represented by Mr Wanjala.

3. Upon the finding of a conviction against the accused herein, the court scheduled the matter for a sentence hearing and also called for a pre-sentence report from the County Probation Officer Bungoma which was duly availed.

4. The sentence hearing commenced on the October 6, 2022. Mr Wanjala learned counsel for the defence, submitted that the accused is a first offender and has a family of five children who depend on him for survival. Counsel urged the court to grant a non-custodial sentence. It was finally submitted that a punitive sentence is not a deterrence and that this court should consider the circumstances surrounding the commission of the offence. It was also submitted that the children need to be assisted by the accused.

5. Miss Mukangu, learned counsel for the prosecution, submitted that the accused should be given a punitive sentence as his actions were in bad taste in that he assaulted his wife to death and which was witnessed by their 11-year-old son who was thus psychologically traumatized. It was submitted that the accused should have been humane while disciplining his wife. Counsel submitted that the accused should be made to serve a lesson especially on the gender based violence. It was finally submitted that the accused should be ordered to serve a punitive sentence namely death.

6. The pre-sentence report is dated October 28, 2022. It gave an odyssey of the accused and deceased as a couple who had been married for about twenty years which marriage was tumultuous as it was marred with frequent squabbles and fights due to excessive alcohol drinking coupled with accusations and counter accusations of infidelity. It also indicated that the accused after assaulting his wife in the presence of their younger son placed the body onto the bed while he lay on the ground next to the bed until the villagers stormed the house and gave him a thorough beating before he was rescued by the area administrators and police officers. The area assistant chief is reported to have pointed out that the safety of the accused cannot be guaranteed due to hostility from the community and they prefer that he serves a custodial sentence. The report further indicates that the accused still maintains his innocence and hence he does not take responsibility for the offence which in essence will complicate or compromise his supervision and rehabilitation.

7. I have considered the submissions of both learned counsels as well as the pre-sentence report dated October 28, 2022. In sentencing the accused herein, the following factor/reasons are to be considered:a.The case of Francis Karioko Muruatetu & another v Republic [2017] eKLR.b.All mitigating factors submitted by both learned counsels for the parties herein which are convincing and have ably guided me to pass an appropriate sentence against the accused.c.The Judiciary Sentencing Policy Guidelines particularly paragraph 23. 7.d.The pre-sentence report dated October 28, 2022. e.The accused has already been convicted of murder.

8. From the facts of the case and the way the deceased was killed, the accused is reported to have killed the deceased and placed her body on the bed while he lay on the floor next to the bed and left everything to fate and to appear like the two had entered into a suicidal pact of some sort. Indeed, the villagers upon arriving at the scene did not waste time and descended upon the accused by assaulting him and was rescued by the local administration and the police. It was only after treatment for the injuries inflicted by the mob that he was arraigned in court over the present charges.

9. As per the provisions of the law, the accused ought to serve the death sentence. However, owing to the decision of the Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR this court need not go for the mandatory death sentence as it can proceed to consider the circumstances and pass an appropriate sentence. Paragraph 4. 1 of the Judiciary Sentencing Policy Guidelines provides that a balanced sentence serves to attain the reformative, denunciative, community protection, and retributive objective of punishment. In the difficult search for an appropriate and balanced sentence, the factored may not have equal weight but the weight attached to each factor must be appropriate and that a balance of all factors in mitigation and aggravation, the court must determine whether the accused can be adequately sentenced with a non-custodial sentence, payment of a fine or forgiveness by the family of the victim. It is noted from the pre-sentence report that the family of the deceased has flatly rejected any attempts at reconciliation. It is also a fact that a life has been lost which had a devastating consequences on those who depended on her. The children have now been left as orphans. The pathologist who performed the autopsy formed the opinion that the cause of death was haemorrhagic shock with cardiorespiratory arrest. The accused herein seems to have intended to finish off his wife of twenty years and whom he detested her behaviour of excessive alcohol consumption and coming home late. However, the accused, if he got tired with the deceased, ought to have sent her to her parents or relatives or engage the village elder and the area chief to intervene in the matter but he decided to take the law into his hands and ended the life of his companion of twenty years. The deceased died a very painful death as the accused did not bother to take her to hospital but placed her on the bed as he lay on the floor next to the bed where he stayed without raising alarm. The villagers only came to the scene several days when the body had started to decompose. The pre- sentence report indicates that the accused is unwanted in the community for what he did and they call for a custodial rehabilitation. The report further indicates that the accused still denies involvement and which is likely to compromise the issue of his supervision and rehabilitation in the event he is ordered to serve a non-custodial sentence.

10. Accordingly, I am persuaded that the accused deserves an appropriate sentence of imprisonment. In Jonathan Lemiso Ole Keni v Republic [2018] eKLR where the appellant shot a person without provocation, the court imposed a sentence of thirty (30) years imprisonment. In John Ndede Ochola alias Obago v Republic [2018] eKLR the Court of Appeal upheld a sentence of thirty (30) years’ imprisonment in a case of murder where the appellant assaulted the deceased several times causing his death. I find a sentence of twenty years imprisonment to be appropriate in the circumstances. The said sentence should commence from the date of arrest as the accused remained in custody during the trial.

11. The upshot of the foregoing is that I order the accused herein Jared Mabonga Wayungo to serve a sentence of twenty years’ imprisonment which shall commence from the date of arrest namely July 23, 2021. It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 11TH DAY OF NOVEMBER, 2022D KEMEIJUDGEIn the presence of :Jared Mabonga Wayungo Accused.Wanjala for accused.Mukangu for prosecution.Kizito, Court Assistant.