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JudgmentJOSEPH KATUA NGUNDO VS The Republic4 min read

JOSEPH KATUA NGUNDO VS The Republic

High Court at Makueni High Court · · Matheka, Teresia Mumbua


SENTENCE

  1. The appellant was charged, tried, found guilty and convicted on two counts of causing grievous harm contrary to section 234 of the  Penal Code – and arson contrary to section 333(2) (a) of the same code. He was sentenced to 30 years imprisonment on each count to run concurrently.
  2. On appeal, the appeal was dismissed as the charges were proved to the required standard and sustained the conviction.In the judgment there was suggestion to a have some of the issues the matter dealt with through an AJS mechanism due to the nature of the accusations and the realtions among the parties involved in the matter.
  3. On whether or not sentence could be revised I sought a sentence review report from PACs.
  4. The report was filed on 7/11/2023..
  5. However this is the report I got : that the appellant is either 45 years old, or 69 years old or 67 years old. the report did not settle on one age.
  6. He is said to be the last born son in his family – married and separated from the 1st complainant since 2017 due to unresolved marital disputes. He alleged that the last born twins that his wife bore were born out of wedlock.
  7. The family is split with one son supporting him in his claim that his wife the 1st complainant,  was the cause of all the family troubles while the other children supported the mother in denying it all.
  8. The report shows that he blames his wife for everything that went wrong and what happened to her and still accuses her of witchcraft, engaging in diabolic powers and causing harm to the daughter in law, and death to one of the relatives. He continues to lay blame on other persons in the family and appears to be in complete denial that he committed serious offences for which he was found guilty. He remains oblivious to the fact that  that lives could have been lost as he is more concerned about his property than this fact.
  9. It is apparent from the record that the time he has spent in custody has not led  him to self-reflect to enable him bring an end to the havoc in his family coming out of his beliefs.
  10. I have considered what has been stated in the report about  the alleged marital problems. However the appellant  is using that to excuse his criminal conduct and that is not acceptable. Taking the law into his hands to punish his wife for infidelity and alleged  witch craft cannot be allowed as it flies in the face of the requirement that every law abiding citizen must respect the law. His wife’s  is alleged immorality cannot be the excuse for what he did, causing her and their daughter in law grievous harm and setting their homes on fire while inciting a mob to attack both
  11. The tone of the report is that the appellant is not remorseful for what he did as it is his position that it was justified, yet he could easily have caused two deaths in the family.
  12. An AJS mechanism that would understand the issues of witch craft, super powered spirits for business would have assisted but apparently it is not in place.  More importantly none of the parties is willing or ready to undergo this even if it was available. The appellant’s family are unwilling, not ready for any form of reconciliation as it is their view that that the appellant ought to have known better as an elder.
  13. I have taken guidance from the Sentencing guidelines.
  14. He is a  1st offender, I have considered  his age. I have considered the degree of aggravation involved in the committing of the offence and that it targeted the women in the family as alleged witches. The harm was based on the unreasonable beliefs as seen in his lack of remorse, his concerns about property other than people, which the appellant still holds and which could result in more harm if he is released to the society without treatment.
  15. He needs time to reflect and counselling/ treatment.
  16. The Provisions of Article 159(2) (c ) requiring the court to encourage ADR does not limit when that can happen within the justice system. For justice to be seen to have been done and to be felt, it is my considered view that the justice agencies are required to continue working in sync so that as a court I take every opportunity to encourage the restoration of relations through real resolution of disputes.  This case prsents the unique opportunity for PACs and the Prison authorities to assist through their AJS mechanisms the resolution of this family dispute through the victim offender mediation counselling,  
  17. The offender here requires to be assisted to understand the import of his actions.  This he can get within prison through the collaboration of the welfare office in prisons and PACs, Makueni.
  18. In the circumstances, the sentence is revised from 30 years on each count to 15 years on each count to run concurrently from the date of arrests.
  19. This order be served upon PACs and the in Charge Makueni Main Prison for compliance on victim /offender  mediation/counselling.
  20. Orders Accordingly
  21. R/A 14 days

Dated, Signed and Delivered in open court this 23rd April 2024


    JOSEPH KATUA NGUNDO VS The Republic JOSEPH KATUA NGUNDO VS The Republic