RULING
- The applicant was charged with Threatening to kill contrary to section 223(1) of the Penal Code. Particulars being that on the 22nd day of October, 2022 in Nthangu village, Wote location within Makueni sub-county, in Makueni county without lawful excuse uttered words “I will kill you” directed to Jacinda Mumbua Wambua while armed with a bow, a quiver with three arrows.
- He pleaded not guilty and after a full trial was found guilty and convicted accordingly.
- During sentencing the Prosecutor told the court
Accused is not a first offender. Criminal Case E066 of 2020 he was charged with the same offence and was sentenced to serve three years’ imprisonment.
The Accused in his mitigation told the court:
We have a family problem.
In sentencing him the Court stated:
I have carefully considered the plea by convict and also that he is not a first offender. It is clear that convict is hell-bent to creating mayhem at their home. Had he succeeded the complainant would have been seriously harmed or even died. Deterrent sentence is appropriate. I order that he serve (5) five years’ imprisonment.
- The matter came up for revision of sentence. I sought a sentence review report.
- The PACs officer stated with respect to the Accused’s personal and family background:
The inmate hails from Nthangu village, Wote location in Makueni sub-county within Makueni County. He is the son of Jacinta Mumbua Wambua who is a single mother and a primary school teacher in Kalamba primary school. The mother resides in her maternal home w here she was given 3-acre piece of land to do farming. The rest of the extended family also live in the same farm land. The parent is blessed with three children who are all grown up. The first born is working in Nairobi while the second born is in college. They relate well with their mother and other relatives and have no known criminal records.
The inmate is the third born among three siblings. He attended Nthangu primary school and proceeded to Kathonzweni secondary school where he was expelled from school in form three due to indiscipline. He later transferred to Nthangu secondary however he dropped out of school after one term to engage in Muguka business in Wote town. He later left the muguka business to work as a boda boda rider. The inmate appears to be in good health.
The report states further that According to the inmate’s grandmother Nzisa, the inmate is a person with conflicting personalities as sometimes he is cooperative and hardworking and other times, he is violent. The violence is directed to the grandmother and his mother since he does not have problem the rest of the family members. The grandmother stated that the inmate behaves like a person who is possessed by evil spirits as he sometimes arms with dangerous weapons. She pointed out that the source of conflict is not land as the inmate was shown a place to build his house to which he declined.
The mother to the inmate stated that the inmate’s actions are influenced by alcohol and drug abuse and negative peer pressure from his associates. The mother reported that the inmate problems started when he joined secondary school 13 years ago and since that time, he has been harassing her. She described the inmate as a cool person when he is not under the influence of alcohol and bhang. She stated that before the arrest the inmate would arm himself with bows and arrow to prevent her from entering the compound. According to her the inmate is a person who is unpredictable since he is sometimes too good and other times too violent. She pointed out that when the inmate left prison, she showed him a virgin land to build a house and do farming however he protested that his elder brother was given a more productive land with mature trees.
The PACS officer made the following Conclusion:
The inmate is 24 years old and serving 5 years prison term for the offence of threatening to kill where the victim was his biological mother. The inmate is a repeat offender having been charged and convicted twice before Makueni law courts where the mother was the complainant. The inmate is a secondary school dropout and has a history of alcohol and drug abuse. The inmate is the third born among three siblings. The rest of the siblings have no known criminal records and relates well with their mother and the rest of the community. The inmate’s mother is a single mother and a primary school teacher currently attached at Kalamba Secondary School. She inherited three acre piece of land from her maternal parents where she is living with her three children.
The social inquiry established that the inmate is a repeat offender with two previous convictions with the victim as the complainant. The inmate and the victim are always at cross road for no good reason. The inmate always directs his anger to his mother and grandmother and he is known to be troublesome and violent and threatened to shoot his mother with arrows.
The following underlying issues were identified as the cause of the inmate problems as, lack of belongingness as he does not have a father figure and looks down upon his mother and grandmother. The inmate has anger issues which should be addressed. He is an attention seeker, feeling inadequate and blaming other people for his predicaments. The inmate has issues with entitlement having been named after his grandmother and feeling that he is the man of the house and deserves the best. The inmate has issues with drug and substance abuse and negative peer pressure from his associates.
The victim and the rest of the family members are opposed to his early release due to safety reasons since it is not the first time, he is harassing the victim. The inmate behaves well immediately after his release from prison however he goes back to his olds bad habits after a short while. The inmate is likely to reoffend if released early as he has no respect to the victim.
The PACS Recommendation is that
Considering the sentiments expressed by the concerned parties and in giving regard to the findings in the report, it is of opinion that the inmate is unsuitable for non-custodial sentence and the court is urged to uphold the lower court sentence however this recommendation is subject to the discretion of the honourable court.
- I have carefully considered the report and the circumstance of the offence and it is evident that there is a problem in this family that will not be resolved by the incarceration of the applicant.
- It is not OK that as the Criminal Justice system we repeat the same thing and expect a change. If indded the applicant has served three years in prison just the other day for the same offence, we cant just put our heads down and dish out a sentence because he is not a first offender. Then we miss out on what our role is. We are not mere conveyer belts. Katiba yetu imekataa hayo. We must examine the circumstances and do justice in the circumstances of the offence.
- This is not just a criminal offence situation. There are many issues and Article 159 and the the STAJ require us to do more to resolve the actual issue and ensure justice is done to all in this matter.
- It also appears to me that the applicant may have issues that may require assistance that may not be achieved through imprisonment.
- Before I make any orders it is my view that it is necessary that the Probation Officer avails the mother of the applicant on the date the court will give for purposes of seeking a resolution of the underlying issues in this matter.
- This is a matter suitable for both mediation and counselling and I direct that the same be placed before the Deputy Registrar on the 6th June 2024 for the assignment of a mediator/counselor.
- This order be served upon the Probation Officer, Makueni
Dated, signed and delivered virtually this 27th May 2024
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MUMBUA T. MATHEKA
JUDGE