'
SENTENCING
The accused person was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 following a plea agreement signed between the prosecution and the accused person dated 15 th July 2025. The charge was reduced to that of manslaughter contrary to Section 202 as read with 205of the Penal code.
The particulars of offence on 11th September, 2024, at Majengo slums, Shauri moyo area in Nairobi county within the Republic of Kenya she unlawfully killed JOHN WANDEKA.
The facts as per the plea agreement were that :
“7 . The accused person was charged with the offence of Murder contrary to section 203as read with section 204 of the Penal Code which has now been substituted to that of Manslaughter contrary to section 202 as read with section 205 of the Penal Code.
8. Johnson Wandela (the deceased herein) was a Ugandan national who was married to Otieno Mary Ajwang and they lived together at Majengo Slums.
9. The accused person Fridah Mwendwa alias Mama Caleb was a neighbor to the deceased and Otieno Mary Ajwang •
10. On 11th September 2024 at 8:20 pm while Otieno Mary Ajwang was on her way back to the house from buying some painkillers from a nearby chemist, somebody threw a stone at her but she ignored it and kept on walking towards her house.
11. Behind her was the accused (Mama Caleb) who was selling potatoes and groundnuts, that''s when she heard the child of the accused aged four years, telling the mother that Mary had abused her, and that''s when the accused asked her why she was insulting the child which she replied that she was not aware of the allegations.
12. The accused armed with knife which was seen by one the neighbors Diana Atieno Jura placing it on her left side of her waist then followed Mary to her house, insulting her and she later slapped her then left to continue selling her potatoes and groundnuts.
13. After a few minutes later the accused person came back demanding for her money and mobile phone which she alleged that had gotten lost while they were fighting.
Mary did not know about the money and the accused started beating her again.
14. Mary''s husband, the deceased arrived and questioned the accused on what she had
done, and the accused said that she wanted her phone and money, the deceased then slightly pushed the accused away from the door since she was near it.
15. The accused husband who had by then arrived at the scene then punched the deceased, who they struggled with him to the ground. The accused seeing this stabbed the deceased with a knife on the left side of the upper limbs in an attempt to save her husband.
16. The deceased then managed to run away and he was followed by the accused husband who was also armed with a knife, Mary followed them but she could not see her husband and that''s when she decided to report the matter to California vide OB No. 11/9/2024.
17. Mary went back home and that''s when she saw that the deceased tried to call him. through her phone which she had left behind, and on calling back someone else picked the call and informed her that her husband was stabbed and was taken to the hospital, and at around 1:00 am she received a call from the deceased who informed her that indeed he was admitted at Kenyatta National Hospital.
18. On 12th September 2024, Mary went to Kenyatta Hospital and confirmed the stab wounds, the deceased was later treated and discharged.
19. On 14th September 2024, the deceased while at home he started complaining of stomach ache. Mary, took him to Morningside Dispensary at Shauri Moyo for treatment but was referred for a X - Ray and later returned to the clinic where he succumbed while undergoing treatment.
20. The deceased wife Mary made report at Shauri Moyo Poice sataion where the police come and processed the body and took at City Mortuary for autopsy.
21. On 17th September, the family of the deceased went to City Mortuary where Jimmy Wandeka the deceased brother and Isaiah Khauka the deceased father positively identified the body of the deceased, John Wandeka to Dr. Simon Omuok, the pathologist.
22. The postmortem was conducted on the body of the deceased and the opinion of the doctor as to the cause of death was complications following abdominal injury due to sharp force penetrating trauma.
23. During investigation, on the 14h of September, 2024 after the matter was reported to the DCI Shauri Moyo, the accused was arrested and placed in station cells by Sgt Charlse Liru ,however the husband of the accused, Bundi Kilato who was fighting with
the deceased that fateful day before he stabbed by the accused was and still at large.
24. On the 16th of September 2024, the Investigating officers recorded the statements of the deceased''s spouse Mary and the other crucial witnesses. On the same day, the Police officer made a miscellaneous application No. E1183 of 2024 seeking the orders of detaining the Accused for extra days at Shauri Moyo Police Station to enable the Investigating Officer to conduct investigations. Where the court granted fourteen days.
25. The accused person was arraigned before the Milimani High Court on 10th September 2024, to answer to one count of murder contrary to see 203 as read with sec 204 of the penal code.
26.on 15th October,2024 the accused was taken at Mbagathi Hospital for mental assessment and was declared by doc Kingi Mochache a Psychiatrist not fit to stand trial and recommended for an observation review at least after 2 weeks
27. On 14th January, 2025 the accused was taken for mental assessment review and the same doctor declare that she was fit to stand trial.
28. The accused person knowingly, voluntarily, and truthfully admits the facts contained herein.”
The facts were read to the accused person and she admitted them to be true and correct. The accused was accordingly convicted for the offence of manslaughter contrary to section 202 as read with 205 of the Criminal Procedure Code.
The court called for pre-sentence report and Margaret Aduol Probation officer based at Milimani High court, prepared a report dated 15 th September 2025 in which she recommended that the accused person be placed on a 3 year probation period.
In mitigation, Ms. Ajiambo Counsel for the accused, told the court that the accused was remorseful and that she never intended to kill the deceased. According to counsel, the fight was started by the deceased’s wife following a quarrel over water that the accused person had poured.
Counsel further urged the court to consider that it was the deceased who started punching the accused and that the knife used by the accused was introduced into the scene by the deceased’s wife.
The accused person was said to be a young lady of 29 years with 3 children who require her care. The children are aged 6 and 10 years respectively. Counsel further informed the court that the accused is a single mother and that the children are currently with their paternal aunt who is unable to fend for them. The man who lived with the accused person prior to the incident is said to have vanished after the incident.
The court invited counsel for the prosecution and the defense to make proposals on what each one of them would consider a suitable custodial sentence if the court was to decide to send the accused person to prison.
Counsel for the accused proposed a sentence of 3 years period of imprisonment while Ms. Njoroge for the state proposed 20 years.
The offence of manslaughter attracts a life sentence however, life imprisonment would only be reserved for the most severe cases of manslaughter. The specific circumstances of a case as well as the accused person’s circumstances would influence the mind of a court in determining the appropriate sentence.
The court has also to consider the fact that an accused person has elected to accept responsibility for the offence by pleading guilty to the lesser offence of manslaughter thereby saving precious judicial time. See Mwangi V Republic (Criminal Appeal 29 of 2016) {2024} KECA 928 (KLR) (26 th July 2024) (Judgment). The Court of Appeal emphasized the need to recognize that a plea agreement guarantees the prosecution a conviction which is not a certainty in a trial.
An accused person who agrees to take a plea bargain must reap fruits from such a venture otherwise the law on plea bargain shall remain under utilized since there will be no incentive to accused persons to take up plea bargain. The world over nations have reduced their criminal cases backlog through robust application of plea bargain reserving the limited judicial time to those matters that merit full trial.
It is time Kenya as a country socialized its populace on this emerging global phenomenon to reduce the number of cases that daunt our court system. The prosecution and the defense must lead in this effort if we are to transform criminal practice in Kenya and reduce the turn around time in criminal justice dispensation.
The circumstances of this offence are well captured at page 4 of the Probation officer’s report as hereunder:
“CIRCUMSTANCES OF THE OFFENCE
On the material day while at her place of work she accidentally splashed dirty water at her neighbor one Mary who went on to insult her. She asked her why she was insulting her but she instead went ahead and pulled her hair which she had plaited. They fought for a while and members of the public tried to separate them. Mary''s husband now deceased came and demanded to know what was happening and Mary started to explain to him her side of the story and she interjected and demanded to be heard as well. The deceased then started to assault her with fists and immediately her husband who was nearby also joined and the two men fought. Mary went to her house and came back with a knife which she threw to her husband but she caught it before her husband did and stabbed the deceased with it. The deceased managed to escape. She later went to the police station to report the matter. She was issued with a P3 form to be filled but she did not manage to get it filled by a doctor. Three days later while she was sleeping in her house, she was arrested by police officers having been informed that Mary''s husband had died and that she was being arrested in connection with the matter. It appears that anger is what led her to commit the offence.”
A reading of these facts shows that the situation giving rise to the death of the deceased was provoked by none other than the deceased’s wife. Had she not provoked the situation perhaps the deceased would still be alive.
It is clear to this court that the deceased was a victim of what was purely a petty quarrel by the accused and his wife. Had the deceased not waded into the conflict perhaps the accused would not have hurt him. The incident is clearly regrettable. The court in sentencing the accused must therefore address its minds to the totality of the circumstances and deliver justice to the victims as well as the accused.
The Supreme Court of Kenya in Francis Karioko Muruatetu & another v Republic [2017] eKLR stated that: -
“It is evident that the trial process does not stop at convicting the accused. There is no doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing that the court hears submissions that impact on sentencing. This necessarily means that the principle of fair trial must be accorded to the sentencing stage too.
In addition, the Supreme Court of Kenya gave guidelines to the Courts to consider in re-sentencing offenders which are also applicable to sentencing of an accused convicted of the offence of murder as follows: -
“ As a consequence of this decision, paragraph 6.4-6.7 of the guidelines are no longer applicable.
To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:
(a)age of the offender;
(b)being a first offender;
(c)whether the offender pleaded guilty;
(d)character and record of the offender;
(e)commission of the offence in response to gender-based violence;
(f)remorsefulness of the offender;
(g)the possibility of reform and social re-adaptation of the offender;
(h)any other factor that the Court considers relevant
This court following the guidance by the Supreme Court take the view that the circumstances of this case militate against a custodial sentence. The accused person deserves another chance in life considering the totality of the circumstances under which the offence was committed, her age and the best interest of the three minors who now have to depend on relatives for care.
Accordingly, the court agrees with the probation officer that this a matter fit for a non- custodial sentence. The proportionality test dictates that courts must consider sentences that are proportionate to the gravity of the offense. In Nationwide News Pty Ltd. V Wills (1992) 177 CLR 1 in which Mason J as he then was remarked as follows on the ‘reasonable proportionality test’ in these terms:
‘’In determining whether that requirement reasonable proportionality is satisfied, it is material to ascertain whether, and to extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law. Proportionality can thus be seen as rooted in respect for the basic human rights of those before the court. In the case of crime, though punishment may be deserved, the fundamental values of the law restrain excessive, arbitrary and capricious punishment. The doctrine of proportionality is one of the means by which that restraint is enforced.’’
As result, this court balancing the interests of justice in the circumstances while remaining alive to the need for proportionality in sentencing, finds and holds that a custodial sentence is not merited in this case. Accordingly, the accused person is sentenced to serve a period of 3 year probation as she shall be directed by the officer in charge of probation Milimani law courts.
It is so ordered.
'
SENTENCING
The accused person was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 following a plea agreement signed between the prosecution and the accused person dated 15 th July 2025. The charge was reduced to that of manslaughter contrary to Section 202 as read with 205of the Penal code.
The particulars of offence on 11th September, 2024, at Majengo slums, Shauri moyo area in Nairobi county within the Republic of Kenya she unlawfully killed JOHN WANDEKA.
The facts as per the plea agreement were that :
“7 . The accused person was charged with the offence of Murder contrary to section 203as read with section 204 of the Penal Code which has now been substituted to that of Manslaughter contrary to section 202 as read with section 205 of the Penal Code.
8. Johnson Wandela (the deceased herein) was a Ugandan national who was married to Otieno Mary Ajwang and they lived together at Majengo Slums.
9. The accused person Fridah Mwendwa alias Mama Caleb was a neighbor to the deceased and Otieno Mary Ajwang •
10. On 11th September 2024 at 8:20 pm while Otieno Mary Ajwang was on her way back to the house from buying some painkillers from a nearby chemist, somebody threw a stone at her but she ignored it and kept on walking towards her house.
11. Behind her was the accused (Mama Caleb) who was selling potatoes and groundnuts, that''s when she heard the child of the accused aged four years, telling the mother that Mary had abused her, and that''s when the accused asked her why she was insulting the child which she replied that she was not aware of the allegations.
12. The accused armed with knife which was seen by one the neighbors Diana Atieno Jura placing it on her left side of her waist then followed Mary to her house, insulting her and she later slapped her then left to continue selling her potatoes and groundnuts.
13. After a few minutes later the accused person came back demanding for her money and mobile phone which she alleged that had gotten lost while they were fighting.
Mary did not know about the money and the accused started beating her again.
14. Mary''s husband, the deceased arrived and questioned the accused on what she had
done, and the accused said that she wanted her phone and money, the deceased then slightly pushed the accused away from the door since she was near it.
15. The accused husband who had by then arrived at the scene then punched the deceased, who they struggled with him to the ground. The accused seeing this stabbed the deceased with a knife on the left side of the upper limbs in an attempt to save her husband.
16. The deceased then managed to run away and he was followed by the accused husband who was also armed with a knife, Mary followed them but she could not see her husband and that''s when she decided to report the matter to California vide OB No. 11/9/2024.
17. Mary went back home and that''s when she saw that the deceased tried to call him. through her phone which she had left behind, and on calling back someone else picked the call and informed her that her husband was stabbed and was taken to the hospital, and at around 1:00 am she received a call from the deceased who informed her that indeed he was admitted at Kenyatta National Hospital.
18. On 12th September 2024, Mary went to Kenyatta Hospital and confirmed the stab wounds, the deceased was later treated and discharged.
19. On 14th September 2024, the deceased while at home he started complaining of stomach ache. Mary, took him to Morningside Dispensary at Shauri Moyo for treatment but was referred for a X - Ray and later returned to the clinic where he succumbed while undergoing treatment.
20. The deceased wife Mary made report at Shauri Moyo Poice sataion where the police come and processed the body and took at City Mortuary for autopsy.
21. On 17th September, the family of the deceased went to City Mortuary where Jimmy Wandeka the deceased brother and Isaiah Khauka the deceased father positively identified the body of the deceased, John Wandeka to Dr. Simon Omuok, the pathologist.
22. The postmortem was conducted on the body of the deceased and the opinion of the doctor as to the cause of death was complications following abdominal injury due to sharp force penetrating trauma.
23. During investigation, on the 14h of September, 2024 after the matter was reported to the DCI Shauri Moyo, the accused was arrested and placed in station cells by Sgt Charlse Liru ,however the husband of the accused, Bundi Kilato who was fighting with
the deceased that fateful day before he stabbed by the accused was and still at large.
24. On the 16th of September 2024, the Investigating officers recorded the statements of the deceased''s spouse Mary and the other crucial witnesses. On the same day, the Police officer made a miscellaneous application No. E1183 of 2024 seeking the orders of detaining the Accused for extra days at Shauri Moyo Police Station to enable the Investigating Officer to conduct investigations. Where the court granted fourteen days.
25. The accused person was arraigned before the Milimani High Court on 10th September 2024, to answer to one count of murder contrary to see 203 as read with sec 204 of the penal code.
26.on 15th October,2024 the accused was taken at Mbagathi Hospital for mental assessment and was declared by doc Kingi Mochache a Psychiatrist not fit to stand trial and recommended for an observation review at least after 2 weeks
27. On 14th January, 2025 the accused was taken for mental assessment review and the same doctor declare that she was fit to stand trial.
28. The accused person knowingly, voluntarily, and truthfully admits the facts contained herein.”
The facts were read to the accused person and she admitted them to be true and correct. The accused was accordingly convicted for the offence of manslaughter contrary to section 202 as read with 205 of the Criminal Procedure Code.
The court called for pre-sentence report and Margaret Aduol Probation officer based at Milimani High court, prepared a report dated 15 th September 2025 in which she recommended that the accused person be placed on a 3 year probation period.
In mitigation, Ms. Ajiambo Counsel for the accused, told the court that the accused was remorseful and that she never intended to kill the deceased. According to counsel, the fight was started by the deceased’s wife following a quarrel over water that the accused person had poured.
Counsel further urged the court to consider that it was the deceased who started punching the accused and that the knife used by the accused was introduced into the scene by the deceased’s wife.
The accused person was said to be a young lady of 29 years with 3 children who require her care. The children are aged 6 and 10 years respectively. Counsel further informed the court that the accused is a single mother and that the children are currently with their paternal aunt who is unable to fend for them. The man who lived with the accused person prior to the incident is said to have vanished after the incident.
The court invited counsel for the prosecution and the defense to make proposals on what each one of them would consider a suitable custodial sentence if the court was to decide to send the accused person to prison.
Counsel for the accused proposed a sentence of 3 years period of imprisonment while Ms. Njoroge for the state proposed 20 years.
The offence of manslaughter attracts a life sentence however, life imprisonment would only be reserved for the most severe cases of manslaughter. The specific circumstances of a case as well as the accused person’s circumstances would influence the mind of a court in determining the appropriate sentence.
The court has also to consider the fact that an accused person has elected to accept responsibility for the offence by pleading guilty to the lesser offence of manslaughter thereby saving precious judicial time. See Mwangi V Republic (Criminal Appeal 29 of 2016) {2024} KECA 928 (KLR) (26 th July 2024) (Judgment). The Court of Appeal emphasized the need to recognize that a plea agreement guarantees the prosecution a conviction which is not a certainty in a trial.
An accused person who agrees to take a plea bargain must reap fruits from such a venture otherwise the law on plea bargain shall remain under utilized since there will be no incentive to accused persons to take up plea bargain. The world over nations have reduced their criminal cases backlog through robust application of plea bargain reserving the limited judicial time to those matters that merit full trial.
It is time Kenya as a country socialized its populace on this emerging global phenomenon to reduce the number of cases that daunt our court system. The prosecution and the defense must lead in this effort if we are to transform criminal practice in Kenya and reduce the turn around time in criminal justice dispensation.
The circumstances of this offence are well captured at page 4 of the Probation officer’s report as hereunder:
“CIRCUMSTANCES OF THE OFFENCE
On the material day while at her place of work she accidentally splashed dirty water at her neighbor one Mary who went on to insult her. She asked her why she was insulting her but she instead went ahead and pulled her hair which she had plaited. They fought for a while and members of the public tried to separate them. Mary''s husband now deceased came and demanded to know what was happening and Mary started to explain to him her side of the story and she interjected and demanded to be heard as well. The deceased then started to assault her with fists and immediately her husband who was nearby also joined and the two men fought. Mary went to her house and came back with a knife which she threw to her husband but she caught it before her husband did and stabbed the deceased with it. The deceased managed to escape. She later went to the police station to report the matter. She was issued with a P3 form to be filled but she did not manage to get it filled by a doctor. Three days later while she was sleeping in her house, she was arrested by police officers having been informed that Mary''s husband had died and that she was being arrested in connection with the matter. It appears that anger is what led her to commit the offence.”
A reading of these facts shows that the situation giving rise to the death of the deceased was provoked by none other than the deceased’s wife. Had she not provoked the situation perhaps the deceased would still be alive.
It is clear to this court that the deceased was a victim of what was purely a petty quarrel by the accused and his wife. Had the deceased not waded into the conflict perhaps the accused would not have hurt him. The incident is clearly regrettable. The court in sentencing the accused must therefore address its minds to the totality of the circumstances and deliver justice to the victims as well as the accused.
The Supreme Court of Kenya in Francis Karioko Muruatetu & another v Republic [2017] eKLR stated that: -
“It is evident that the trial process does not stop at convicting the accused. There is no doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing that the court hears submissions that impact on sentencing. This necessarily means that the principle of fair trial must be accorded to the sentencing stage too.
In addition, the Supreme Court of Kenya gave guidelines to the Courts to consider in re-sentencing offenders which are also applicable to sentencing of an accused convicted of the offence of murder as follows: -
“ As a consequence of this decision, paragraph 6.4-6.7 of the guidelines are no longer applicable.
To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:
(a)age of the offender;
(b)being a first offender;
(c)whether the offender pleaded guilty;
(d)character and record of the offender;
(e)commission of the offence in response to gender-based violence;
(f)remorsefulness of the offender;
(g)the possibility of reform and social re-adaptation of the offender;
(h)any other factor that the Court considers relevant
This court following the guidance by the Supreme Court take the view that the circumstances of this case militate against a custodial sentence. The accused person deserves another chance in life considering the totality of the circumstances under which the offence was committed, her age and the best interest of the three minors who now have to depend on relatives for care.
Accordingly, the court agrees with the probation officer that this a matter fit for a non- custodial sentence. The proportionality test dictates that courts must consider sentences that are proportionate to the gravity of the offense. In Nationwide News Pty Ltd. V Wills (1992) 177 CLR 1 in which Mason J as he then was remarked as follows on the ‘reasonable proportionality test’ in these terms:
‘’In determining whether that requirement reasonable proportionality is satisfied, it is material to ascertain whether, and to extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law. Proportionality can thus be seen as rooted in respect for the basic human rights of those before the court. In the case of crime, though punishment may be deserved, the fundamental values of the law restrain excessive, arbitrary and capricious punishment. The doctrine of proportionality is one of the means by which that restraint is enforced.’’
As result, this court balancing the interests of justice in the circumstances while remaining alive to the need for proportionality in sentencing, finds and holds that a custodial sentence is not merited in this case. Accordingly, the accused person is sentenced to serve a period of 3 year probation as she shall be directed by the officer in charge of probation Milimani law courts.
It is so ordered.
'