1. The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code that on 16/8/2024 at around 1900 Hours at Mavarata village, Kalalani sub-location, Samburu Sub-County within Kwale County, killed Samwel Kilonzo Musyoka.
2. Initially the accused person pleaded not guilty and the case was fixed for hearing. However, on the date fixed for hearing, the prosecution informed the court that they had engaged in plea negotiation with the accused person which subsequently resulted in the accused person entering a plea bargain agreement with the prosecution. On 3/6/2025 the plea bargain agreement was recorded in court whereupon the information was put to the accused person who pleaded guilty to the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
3. The plea bargain agreement dated 3/3/2024 was adopted by the court upon it being satisfied that the accused person had understood the contents and that she had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion.
4. Upon the accused person pleading guilty to the information, the state presented the following facts in support of the charge:
The deceased person and the accused person were living together as husband and wife and had three children. On 16/8/2024, the deceased arrived home at about 6.00 p.m. and found his daughter Cynthia Musyoka preparing supper. He was carrying some vegetables in his hand and handed over the same to Cynthia Musyoka. She asked Cynthia where her mother, the accused was but Cynthia responded that she did not know. He stated he had been calling the accused since 4.00 p.m. but she was not responding. The deceased then asked for the whereabouts of Cynthia’s namely brother David Musyoka and Cynthia responded that he was playing outside. The deceased then left the house.
At around 7.00 p.m. the accused person arrived and found Cynthia cutting the vegetables that the deceased had brought earlier. The accused informed Cynthia that she was going to cook the vegetables herself and consequently Cynthia then handed over the knife she was using so that that she could chop onions. As she was chopping onions the deceased arrived and immediately asked the accused person where she had been since 4 p.m. as he had been calling her in vain. The accused person did not respond. The deceased became agitated and advanced towards the accused person. He grabbed the accused person by the neck and started pulling and pushing her. As the commotion was going on the couple’s two children David, who had come back from where he had been playing with his friends and Cynthia were screaming for help but no one responded as the accused person and the deceased were always fighting. The deceased continued pushing and pulling the accused person and it is at this point that the accused person took the knife she was using to cut vegetables and stabbed the deceased on the head and chest and the deceased fell down.
David then called a neighbor who responded and advised him to get a “tuk tuk” and take his father to hospital. The accused and her son rushed the deceased to Mariakani hospital but he was pronounced dead on arrival.
The accused person went to Mariakani police station and reported the matter and she was immediately detained for murder. Investigations were carried out and the accused person was charged with the offence of murder which has now been substituted with manslaughter upon the plea agreement.
5. The accused person admitted the facts to be correct whereupon she was convicted.
6. The State indicated that they had no records of previous convictions for the accused person.
7. In mitigation Ms. Wanjiku, learned counsel for the accused person made a passionate plea that the accused person should be considered for a lenient and non-custodial sentence. Learned counsel informed the court that the accused person has three young children who are now left destitute. That the death was not premeditated but purely accidental and that the deceased was the aggressor. All the same the accused person regrets her actions. That the accused person lives with a life-threatening decease and so she requires constant medication. She said her medical documents will be presented to the probation officer who will be preparing a pre-sentence report.
8. The court called for a pre-sentence report and victim impact statement. In the pre-sentence report dated 19/6/2025 it was stated that the accused person is experiencing multiple health challenges including a terminal illness, kidney condition and rectal prolapse.
9. The report further indicates that she is described by her siblings as being resistant to advice, defensive and increasingly displaying anger related issues. She is of short temper and escalates minor provocations into verbal quarrels.
10. She together with her late husband, her victim engaged in alcohol consumption frequent quarrels and domestic fights. They were described as both being aggressive towards each other.
11. In the report, the accused person made allegations against her late husband which in the absence of any corroboration from another person I find them misplaced and only meant to seek sympathy from the court because, if at all her late husband had committed a serious sexual offence, she ought to have reported the matter to the police and not turn it into a cause to harm him.
12. The report indicates that she expresses deep remorse and regret for her actions leading to the offence but at the same time she is still bitter with her late husband for what she describes as painful memories and emotional trauma of her trouble marriage noting that she still bears visible scars on her body as a result of the abuse.
13. It is indicated that the home environment remains highly volatile and unsafe for the accused person to return to as the community harbours bitterness towards her. The victim’s family do not wish to see her return to Mariakani. Eventually she will ave to return there Her parents’ family is however willing to take her in.
14. The report concludes by recommending that the accused person be given a non-custodial sentence of probation for rehabilitation.
15. The victim impact statement indicates that the accused person’s children are struggling to reconcile with what happened to their father. They are resentful towards their mother for her role in their father’s death. The youngest child who is 4 years old appears unaware of the unfolding situation.
16. It is further recommended that the three children be referred to the Children department as children in need of care and protection even as the family members are willing to take them in.
17. The offence of manslaughter attracts a maximum sentence of life imprisonment as provided for under Section 205 of the Penal Code which reads as follows;
18. The sentencing objectives in Kenya have been captured in the Judiciary Sentencing Policy Guidelines at page 15 to be the following: -
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.
19. In deciding whether to impose a custodial or non-custodial sentence, the court is required to consider the following factors:-
a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
b) Criminal history of the offender. Considering the seriousness of the offences, first offenders should be considered for non-custodial sentence.
c) Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
d) Protection of the community: - where the offender is likely to pose a threat to the community.
e) Offender’s responsibility to third parties: - where there are people depending on the offender.
20. I have considered the mitigation tendered by learned counsel for the accused person, the fact that she is a first offender, the gravity of the charge, the mitigating as well as the aggravating factors.
21. The aggravating factors are that the accused person abused marital relationship with the victim and caused his death in their very house that each family member hopes to get security. She used a weapon, a sharp knife to cause the injuries that resulted in the death of the deceased.
22. The mitigating factors are that she pleaded guilty to the offence and did not run away after committing the offence. She took the step to take the deceased to hospital even as he was pronounced to be dead on arrival. She then presented herself to the police and reported the incident.
23. In the plea bargain agreement, the accused person asked to be considered for a non-custodial sentence while the prosecution recommended that she be sentenced to three years’ imprisonment.
24. I have taken into consideration these recommendations but remembering that sentencing is at the discretion of the court.
25. In the case of Barasa alias Munika v Republic [2025] KECA 236 (KLR) the Court of Appeal while finding a sentence of 30 years imprisonment to be excessive in the circumstances of the case and reducing it to 15 years imprisonment where the appellant had pleaded guilty on a charge of the murder of his wife which was reduced to manslaughter upon entering a plea agreement with the State said thus:
“Plea agreements serve an important beneficial role in the Criminal Justice System. They increase the efficiency of the system by saving time and money which would otherwise be spent on lengthy trials. They also benefit the victim and/or her family because they are spared the public trial and its accompanying emotional trauma. Further, plea agreements offer more certainty to both the prosecutor (and victims of the crime) and the accused person. It is, therefore, a judicial policy to encourage and incentivize plea agreements in appropriate cases.”
26. In the case of GEDION KENGA MAITA vs REPUBLIC [1997] KECA 184 (KLR) the deceased who was the appellant’s brother, when quarrelling with the appellant, told the appellant that he (appellant) was a useless man with no wife and children and that upon his death, nobody would remember him. To cap it all, the deceased kicked the appellant. The appellant lost his cool, ran and got a knife and stabbed his brother who subsequently succumbed to that injury. The appellant ran and disappeared but he subsequently gave himself up to the police. On these facts the appellant admitted a charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The offer to plead guilty to the lesser charge of manslaughter was acceptable to the prosecution and the court did accept it. He was sentenced to life imprisonment. On appeal, the Court of Appeal said the sentence of life in the circumstances of the case was not only unreasonable but outrageous and there no basis for it and reduced the sentence of life imprisonment to one of five years imprisonment.
27. Recently, this court in Mombasa Criminal Case No. E011 of 2023 Republic v Qabale Dadacha Dabasso had occasion to consider a case of similar circumstances to the present one where the accused person had caused the death of her husband with a knife. The accused person was a first offender and she was remorseful. She did not escape from the scene after the incident. She inflicted one blow upon the deceased on a part of the body, the thigh, that would not ordinarily be found to be life threatening but all the same turned out to be fatal. She was the one who alerted other people and immediately informed them that she had stabbed the deceased and he was bleeding profusely. She helped to take him to hospital where he succumbed to the injury afterwards. After full trial, the court reduced the charge to manslaughter and sentenced her to five years imprisonment.
28. Having considered the circumstances surrounding the commission of the offence herein, the mitigation by the accused person and the fact that the accused person was a first offender and the recommendation by the Probation Officer, I am of the considered opinion that a sentence combining both custodial and non-custodial sentences will achieve the objective of both deterrence and rehabilitation.
29. Further I have taken into account the doctrine of proportionality in sentencing, that the sentence must be commensurate to the crime committed.
30. Consequently, I come to the conclusion that a sentence that is appropriate and will meet the justice of this case is a cumulative punishment of five years which I hereby pass upon the accused person. The first four years will be imprisonment to be served in custody and the remainder one year, non-custodial, to be on probation. The sentence will run from the time the accused person was taken into custody as provided for under section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya.
31. Orders accordingly.
Dated, Signed and Delivered at Kwale on the virtual platform Teas this 30th day of June, 2025.
ANDAYI W. F., J.
JUDGE
In the presence of:
Accused present from Shimo La Tewa Women prison.
Vallerie for the State.
Wanjiku (Ms.) for the accused person.
Sabina: Court Assistant.
2. Initially the accused person pleaded not guilty and the case was fixed for hearing. However, on the date fixed for hearing, the prosecution informed the court that they had engaged in plea negotiation with the accused person which subsequently resulted in the accused person entering a plea bargain agreement with the prosecution. On 3/6/2025 the plea bargain agreement was recorded in court whereupon the information was put to the accused person who pleaded guilty to the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
3. The plea bargain agreement dated 3/3/2024 was adopted by the court upon it being satisfied that the accused person had understood the contents and that she had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion.
4. Upon the accused person pleading guilty to the information, the state presented the following facts in support of the charge:
The deceased person and the accused person were living together as husband and wife and had three children. On 16/8/2024, the deceased arrived home at about 6.00 p.m. and found his daughter Cynthia Musyoka preparing supper. He was carrying some vegetables in his hand and handed over the same to Cynthia Musyoka. She asked Cynthia where her mother, the accused was but Cynthia responded that she did not know. He stated he had been calling the accused since 4.00 p.m. but she was not responding. The deceased then asked for the whereabouts of Cynthia’s namely brother David Musyoka and Cynthia responded that he was playing outside. The deceased then left the house.
At around 7.00 p.m. the accused person arrived and found Cynthia cutting the vegetables that the deceased had brought earlier. The accused informed Cynthia that she was going to cook the vegetables herself and consequently Cynthia then handed over the knife she was using so that that she could chop onions. As she was chopping onions the deceased arrived and immediately asked the accused person where she had been since 4 p.m. as he had been calling her in vain. The accused person did not respond. The deceased became agitated and advanced towards the accused person. He grabbed the accused person by the neck and started pulling and pushing her. As the commotion was going on the couple’s two children David, who had come back from where he had been playing with his friends and Cynthia were screaming for help but no one responded as the accused person and the deceased were always fighting. The deceased continued pushing and pulling the accused person and it is at this point that the accused person took the knife she was using to cut vegetables and stabbed the deceased on the head and chest and the deceased fell down.
David then called a neighbor who responded and advised him to get a “tuk tuk” and take his father to hospital. The accused and her son rushed the deceased to Mariakani hospital but he was pronounced dead on arrival.
The accused person went to Mariakani police station and reported the matter and she was immediately detained for murder. Investigations were carried out and the accused person was charged with the offence of murder which has now been substituted with manslaughter upon the plea agreement.
5. The accused person admitted the facts to be correct whereupon she was convicted.
6. The State indicated that they had no records of previous convictions for the accused person.
7. In mitigation Ms. Wanjiku, learned counsel for the accused person made a passionate plea that the accused person should be considered for a lenient and non-custodial sentence. Learned counsel informed the court that the accused person has three young children who are now left destitute. That the death was not premeditated but purely accidental and that the deceased was the aggressor. All the same the accused person regrets her actions. That the accused person lives with a life-threatening decease and so she requires constant medication. She said her medical documents will be presented to the probation officer who will be preparing a pre-sentence report.
8. The court called for a pre-sentence report and victim impact statement. In the pre-sentence report dated 19/6/2025 it was stated that the accused person is experiencing multiple health challenges including a terminal illness, kidney condition and rectal prolapse.
9. The report further indicates that she is described by her siblings as being resistant to advice, defensive and increasingly displaying anger related issues. She is of short temper and escalates minor provocations into verbal quarrels.
10. She together with her late husband, her victim engaged in alcohol consumption frequent quarrels and domestic fights. They were described as both being aggressive towards each other.
11. In the report, the accused person made allegations against her late husband which in the absence of any corroboration from another person I find them misplaced and only meant to seek sympathy from the court because, if at all her late husband had committed a serious sexual offence, she ought to have reported the matter to the police and not turn it into a cause to harm him.
12. The report indicates that she expresses deep remorse and regret for her actions leading to the offence but at the same time she is still bitter with her late husband for what she describes as painful memories and emotional trauma of her trouble marriage noting that she still bears visible scars on her body as a result of the abuse.
13. It is indicated that the home environment remains highly volatile and unsafe for the accused person to return to as the community harbours bitterness towards her. The victim’s family do not wish to see her return to Mariakani. Eventually she will ave to return there Her parents’ family is however willing to take her in.
14. The report concludes by recommending that the accused person be given a non-custodial sentence of probation for rehabilitation.
15. The victim impact statement indicates that the accused person’s children are struggling to reconcile with what happened to their father. They are resentful towards their mother for her role in their father’s death. The youngest child who is 4 years old appears unaware of the unfolding situation.
16. It is further recommended that the three children be referred to the Children department as children in need of care and protection even as the family members are willing to take them in.
17. The offence of manslaughter attracts a maximum sentence of life imprisonment as provided for under Section 205 of the Penal Code which reads as follows;
18. The sentencing objectives in Kenya have been captured in the Judiciary Sentencing Policy Guidelines at page 15 to be the following: -
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.
19. In deciding whether to impose a custodial or non-custodial sentence, the court is required to consider the following factors:-
a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
b) Criminal history of the offender. Considering the seriousness of the offences, first offenders should be considered for non-custodial sentence.
c) Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.
d) Protection of the community: - where the offender is likely to pose a threat to the community.
e) Offender’s responsibility to third parties: - where there are people depending on the offender.
20. I have considered the mitigation tendered by learned counsel for the accused person, the fact that she is a first offender, the gravity of the charge, the mitigating as well as the aggravating factors.
21. The aggravating factors are that the accused person abused marital relationship with the victim and caused his death in their very house that each family member hopes to get security. She used a weapon, a sharp knife to cause the injuries that resulted in the death of the deceased.
22. The mitigating factors are that she pleaded guilty to the offence and did not run away after committing the offence. She took the step to take the deceased to hospital even as he was pronounced to be dead on arrival. She then presented herself to the police and reported the incident.
23. In the plea bargain agreement, the accused person asked to be considered for a non-custodial sentence while the prosecution recommended that she be sentenced to three years’ imprisonment.
24. I have taken into consideration these recommendations but remembering that sentencing is at the discretion of the court.
25. In the case of Barasa alias Munika v Republic [2025] KECA 236 (KLR) the Court of Appeal while finding a sentence of 30 years imprisonment to be excessive in the circumstances of the case and reducing it to 15 years imprisonment where the appellant had pleaded guilty on a charge of the murder of his wife which was reduced to manslaughter upon entering a plea agreement with the State said thus:
“Plea agreements serve an important beneficial role in the Criminal Justice System. They increase the efficiency of the system by saving time and money which would otherwise be spent on lengthy trials. They also benefit the victim and/or her family because they are spared the public trial and its accompanying emotional trauma. Further, plea agreements offer more certainty to both the prosecutor (and victims of the crime) and the accused person. It is, therefore, a judicial policy to encourage and incentivize plea agreements in appropriate cases.”
26. In the case of GEDION KENGA MAITA vs REPUBLIC [1997] KECA 184 (KLR) the deceased who was the appellant’s brother, when quarrelling with the appellant, told the appellant that he (appellant) was a useless man with no wife and children and that upon his death, nobody would remember him. To cap it all, the deceased kicked the appellant. The appellant lost his cool, ran and got a knife and stabbed his brother who subsequently succumbed to that injury. The appellant ran and disappeared but he subsequently gave himself up to the police. On these facts the appellant admitted a charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The offer to plead guilty to the lesser charge of manslaughter was acceptable to the prosecution and the court did accept it. He was sentenced to life imprisonment. On appeal, the Court of Appeal said the sentence of life in the circumstances of the case was not only unreasonable but outrageous and there no basis for it and reduced the sentence of life imprisonment to one of five years imprisonment.
27. Recently, this court in Mombasa Criminal Case No. E011 of 2023 Republic v Qabale Dadacha Dabasso had occasion to consider a case of similar circumstances to the present one where the accused person had caused the death of her husband with a knife. The accused person was a first offender and she was remorseful. She did not escape from the scene after the incident. She inflicted one blow upon the deceased on a part of the body, the thigh, that would not ordinarily be found to be life threatening but all the same turned out to be fatal. She was the one who alerted other people and immediately informed them that she had stabbed the deceased and he was bleeding profusely. She helped to take him to hospital where he succumbed to the injury afterwards. After full trial, the court reduced the charge to manslaughter and sentenced her to five years imprisonment.
28. Having considered the circumstances surrounding the commission of the offence herein, the mitigation by the accused person and the fact that the accused person was a first offender and the recommendation by the Probation Officer, I am of the considered opinion that a sentence combining both custodial and non-custodial sentences will achieve the objective of both deterrence and rehabilitation.
29. Further I have taken into account the doctrine of proportionality in sentencing, that the sentence must be commensurate to the crime committed.
30. Consequently, I come to the conclusion that a sentence that is appropriate and will meet the justice of this case is a cumulative punishment of five years which I hereby pass upon the accused person. The first four years will be imprisonment to be served in custody and the remainder one year, non-custodial, to be on probation. The sentence will run from the time the accused person was taken into custody as provided for under section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya.
31. Orders accordingly.
Dated, Signed and Delivered at Kwale on the virtual platform Teas this 30th day of June, 2025.
ANDAYI W. F., J.
JUDGE
In the presence of:
Accused present from Shimo La Tewa Women prison.
Vallerie for the State.
Wanjiku (Ms.) for the accused person.
Sabina: Court Assistant.