Republic VS ANN MUENI ALIAS MWIKALI Republic VS ANN MUENI ALIAS MWIKALI

The accused person in this matter was initially charged with the offence of murder under Section 203 as read with 204 of the Penal Code.
On the 21^st January 2025 Ms. DELA prosecution counsel informed this court that the state and the accused person had entered a plea Bargain Agreement dated the 4^th November 2024 in which the parties agreed to have the charge of murder reduced to manslaughter.
This court confirmed from the accused person in Kiswahili language the language she opted to use whether indeed there was such an understanding and whether she was ready to plead to the new charge.
The accused confirmed that indeed they had entered into a plea Bargain and she was ready to plead to the manslaughter charge.
The court invited the prosecution to place on record the substituted information and had the same read over to the accused person by MR. KIPTOO Court Assistant and in answer the accused person pleaded guilty to the charge of manslaughter.
The plea of guilty to the offence of manslaughter Contrary to Section 202 as read with 205 of Penal Code was recorded and the facts were read out to the accused by the prosecution.
The court called upon the accused person to respond to the statement of facts and in answer the accused admitted the facts to be true and correct.
This court proceeded to convict the accused person on her own plea of guilt.
The accused was all along represented by MS. NGÁNGÁ and the victim’s family had MR. WANGILA on record.
The prosecution after the conviction of the accused put Mr Jairus Khisa Wahungu a step brother to the deceased on the stand to give a victim impact statement.
MR. Wahungu however informed the court under oath that he did not wish to make a statement prompting MR. Wangila counsel for the victims to seek some more time to call the deceased’s immediate brother to come and tender a victim’s impact statement.
The court graciously acceded to MR. Wangila’s request and fixed the matter for a mention on 5/2/2025 to enable the intended victim to attend as well as to allow the probation department time to prepare a pre-sentence report.
On 5/2/2025 the presentence report was not ready as well as MR. Wangila’s intended witness did not attend.
The court adjourned the matter to 25/2/2025 and on that date the presentence report was placed before the court and MR. Wangila for the victims requested to be given a copy to peruse before the court could proceed further with the matter.
Mr. Wangila on that dated indicated he had difficulties getting the deceased’s brother to appear in court and pleaded with the court to further indulge him. The court adjourned the matter to 5/3/2025.
On 5/3/2025 the deceased’s brother did not appear but was said to be on his way to court. However, MR. Wangila informed the court:

“Having looked at the presentence report I am of the view that the sentiments of the victims are adequately captured in the report. I thus purpose we proceed without further delay. We have had ample opportunity from this court on 3 occasions “

Following that indication, the court proceeded to hear the accused person’s counsel in mitigation.
The accused was said to be a mother of two minors the eldest being a girl aged 13 years the intended victim of the attempted sexual by the deceased.
The deceased and the accused had lived as man and wife for over 8 years.
The accused was said to have been engaged in the sale of secondhand clothes to make a living for the family.
The deceased and the accused had lived as man and wife. The facts as stated in the plea agreement indicate that the deceased had taken in the accused as his wife together with the daughter that the deceased was said to have intended to defile when the accused burst into the house.
The accused was said to be a first offender a fact that the prosecution confirmed by stating that she did not have any previous criminal records.
The court was urged to consider the fact that on the date of the incident the deceased and the accused were drunk at the instance of the deceased as per the facts presented to the court.
The defense counsel further submitted that the accused was deeply remorseful and pleaded for leniency from the court in sentencing.
The court was also urged to consider that by agreeing to plead guilty to the offence of manslaughter the accused had saved precious judicial time.
The prosecution urged the court to consider the severity of the offence and impose a deterrent sentence.
Notably, both the prosecution and the defense did not suggest what each of them considered to be a reasonable sentence.
The parties left it to the court to exercise its judicial discretion considering that the issue of sentencing is a matter largely for the court.
The view of this court is that for Plea Bargains to make so reasonable impact on the reduction of the ever -increasing number of murder cases in our courts today, the defense as well as the prosecution need to make it a practice to suggest to the court what each one of them would considers to be a reasonable sentence in the face of a particular set of facts in a case.
One of the four cardinal duties of counsel is to assist the court in dispensing justice by guiding the court through research and submission on what the court should consider in arriving at a proper sentence
The court is however not left without any guidance since the courts have developed sentencing guidelines for the courts.
The sentencing guidelines, 2023 lay out the objectives of sentencing as:

-a. Retribution: to punish the offender for his/her criminal conduct in a just manner.
b. Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
c. Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.
d. Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
e. Community protection: to protect the community by incapacitating the offender.
f. Denunciation: to communicate the community’s condemnation of the criminal conduct.
g. Reconciliation: To mend the relationship between the offender, the victim and the community.
h. Reintegration: To facilitate the re-entry of the offender into the society.

It is for this court to consider the circumstances of the case and mete out a sentence that is geared towards the attainment of the stated objectives of sentencing. The proportionality doctrine must apply.
The death of the deceased in this matter arose from what clearly was a beastly act on the part of the deceased. He set out to commit an act of defilement which is a very serious offence and has the capacity to drive the mother of the would -be victim to near madness.
The deceased took his wife out for “a good time” in a bar clearly intending to create an opportunity for him to sneak back to the house and defile the accused person’s daughter.
It emerged from the facts that the intended sexual assault victim was not the biological daughter of the deceased. The deceased person’s insatiable sexual desire extended to the adopted daughter and were it not for the accused person’s timely intervention, the deceased would have defiled the innocent young girl.
That would have been a disastrous to the victim considering that he had taken this girl in as her father and continued to enjoy conjugal rights from the mother (the accused) for well over 8 years.
Although his action did not warrant him being put to death, he should have known that the action if discovered by the accused person in this case, it would have led to a calamitous situation. The attempt to do so is what led him to his grave. The court cannot ignore those facts for they go to the element of intent to cause harm by the accused.
The accused is said to be 33 years of age and has two minors to take care of. She obviously was provoked to near insanity when she found the deceased in the house making sexual advances to her daughter.
The pre -sentence report shows that she regrets her action which she says was out of anger.
The probation officer has recommended a non- custodial sentence considering the circumstances surrounding the commission of the offence.
The officer also recommended that the accused person be considered for therapy guidance and counselling on behavior change.
The offence of manslaughter attracts a life imprisonment term. The sentence of life imprisonment would be handed in the most serious category of manslaughter cases as the maximum sentence. See Rep. Vs Idojo (Criminal Case E008 of 2024) {2024} KEHC 4114 (KLR) (26 April 2024)
This court takes the view that in circumstances such as was in this case, the court in exercise of its discretion can impose any sentence including a non- custodial sentence.
Each case must be judged on its own facts and peculiar circumstances. The deceased in this matter was the author of his own misfortune. His thirst for sexual gratification from a minor culminated into his death. He should have just remained happy with his wife and avoided casting his lustful eye on the young innocent girl.
Taking into account the fact that the accused was actually provoked into committing the offence by the deceased, this court is minded to sentence the accused person to a prison term of 3 years commencing on 31^st December 2023 when the accused person was arrested and placed in custody in view of the provisions of Section 333 (2) of the Criminal Procedure Code.
It is the view of this court that by the time the accused person will be completing her stint in prison she will have learnt how to control her anger better even under impulsive provocation. A non -custodial sentence would not serve the deterrence aspect of sentence thus the imprisonment term for a term of 3 years is proportionate in the circumstances.
The accused has a right to Appeal within 14 days on sentence only.
It is ordered.