Preliminaries
1. The convict was charged with murder contrary to Section 203 as read with Section 204 of the Penal Code which charge was reduced to Manslaughter during conviction.
2. The court is now called upon to pass out an appropriate sentence herein. In compliance with the provisions of the law the court called for pre-sentencing report and invited the convict to mitigate.
Pre – Sentence Report
3. In the report dated 3rd December, 2024 by Stephen Muthoka it was stated that the Convict accepted the responsibility for the death of the deceased which he deeply regretted. He added that besides being a brother in law the two were great friends who would visit alcohol dens together. The Convict did not expect the confrontation would escalate to death as he was protecting the sister. He pleaded for leniency on sentencing, a chance to apologize to the sister on loosing a husband, the victim's family for loosing a kin and the children for loosing a father.
4. On the reaction of the victim’s family the officer noted that the victim’s wife unfortunately happened to be a brother to the deceased.She admited that she and the deceased lived in a very abusive family life and occasionally would depend on the relatives to help them solve the issues. They were known to pick fights whenever drunk and neighbours were concerned about their violent conducts. She reported that with support from the family she had forgiven the offender and to some extend admitted that the deceased contributed into the circumstances. According to her the Convict remained in communication with the siblings to the deceased and whom were willing to make outside settlement before the court pronounced the judgement. The deceased left behind two children;Erick Kanja currently working within Mombasa and Joseph Tongi a class 7 pupil at Changamwe.The two children had been drawing support from their mother and the offender's family, as they moved to live with their grandmother.
5. According to the officer, the sister to the deceased one Nancy Njoki added that as the family they forgave the offender and had communicated the same to the family. The children reported to have moved on and had forgiven their uncle for the circumstances pleading with the court to grant the parties a reconciliatory period and that the court should deal with the court leniently if it pleased the court a non-custodial sentence.
6. On the community’s attitude towards the offender and the offence, the officer intimated that the community had come to terms with the offence with the passage of time and having been out on bond the offender had regained trust in the community. He might not be in danger in the event he returned back to the community as there was no threats established to his life and that he paused no risks to the community.
7. In conclusion, the officer stated that the offender was 50 years remanded for 3 months before he was released on bond and later the bond cancelled after conviction. Before the commission of the offence he was not married but since his release on bond he had married a single mother in 2019. The convict had no known previous convictions and he had not been linked to any violent criminal activities. The convict expressly admitted that he was excessively used alcoholic drinks which may be advanced to a disorder and this could have been one of the predisposing factor to the offence. He most of the time would have walked into alcoholic dens with the deceased whom have been mentioned as great friends. He regretted the offence while pleading for lenieney as he was out for a good course when things quickly change into a death trap.
8. According to the officer, the Convict had a fixed place of abode, he had known psycho-social support system and had expressed willingness to reconcile with the victim’s family. It was further noted from the judgement that the offence of murder was subsequently reduced to manslaughter after full court hearing process.
9. The officer recommended a probation sentence for three (3)years through which he will under Psycho-social support, Guidance and Counselling, reconciliation and empowerment programs
10. In mitigation it was stated that the accused was a first offender and of middle age who should be considered for non-custodial sentence.
Analysis and Determination
11. The sentencing objectives in Kenya have been captured in the Judiciary Sentencing Policy Guidelines at page 15 to be the following: -
1) Retribution: to punish the offender for his/her criminal conduct in a just manner.
2) Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
3) Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.
4) Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
5) Community protection: to protect the community by incapacitating the offender.
6) Denunciation: to communicate the community’s condemnation of the criminal conduct.
12. In deciding whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -
a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
b) Criminal history of the offender:- Taking into account 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.
f) Children in conflict with the law: - non- custodial orders should be imposed as a matter of course in cases of children in conflict with law, except in circumstances where, in light of the seriousness of the offence coupled with other factors, the court is satisfied that a custodial order is the most appropriate.
13. The offence of manslaughter is punishable by the maximum penalty of life imprisonment under section 205 of the Penal Code. However, this represents the maximum sentence which is usually reserved for the worst of such cases. I do not consider this to be a case falling in the category of the most extreme cases of manslaughter. It has been indicated by the state that the accused is a first offender. I have for that reason discounted life imprisonment.
14. The Supreme court in the Francis Muruatetu & Another – Versus – Republic [2017] eKLR at paragraph 71 amended the guidelines in respect of re-hearing sentence for the conviction of murder charge to include: -
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.
15. In this matter, the Convict and the deceased were friends and brothers in law and they would hang out together always. The facts herein reveal that the Convict and the deceased had a close and the death of the deceased has clearly affected the convict being that the deceased was his sister’s husband who has left behind children who would need a father figure. I am alive to the fact that the circumstances herein appear to have turned tragic to the two friends which was unfortunate. Both the convict and the deceased were under the influence of alcohol and the Convict is unaware of what caused the confrontation. The pre – sentence report appears favourable.
16. I am also guided by the case of Republic – Versus - Idojo (Criminal Case E008 of 2024) [2024] KEHC 4114 (KLR) (26 April 2024), where the Court siting in Bungoma opined that:-
The accused has sought for leniency regarding the incident. The Court of Appeal in Charo Ngumbao Gugudu -vs- Republic (2011) EKLR held as follows:-
“Further the law is that sentence imposed on an accused person must be commensurate in the moral blame worthiness of the offender and that it is thus not proper exercise for the court to fall to look at the facts and circumstances of the case in their entirety before setting for any given sentence – See Ambani -vs- Republic (1990) eKLR.”
Conclusion and Disposition.
17. I have considered the fact that the convict is a first offender. The accused is remorseful and regrets the offence. I take note of the fact that the family of the accused and the family of the deceased are willing to reconcile and have started the process of healing the damage that was caused by the death of the victim. I also note that the Convict is 50 years of age.
18. In light of that the Convict to serve under probation for a period of three (3) years under the care of the relevant probation officer to be appointed by the Probation and After-care Services and the court recommends during this period the Convict should be getting psychological help, counselling, reconciliation and other empowerment programs to help him, his family and the deceased’s family deal with the unfortunate incident.
19. In addition, and in accordance with section 4 (3) of the Probation of Offenders Act, he must not commit another offence during his probation, in default of which he will be re-sentenced for the present offence.
20. The accused has a right of appeal to the Court of Appeal within 14 days and as per the Rules of that Court but only on the sentence. A copy of the proceedings and sentence shall be supplied to him immediately
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …5th ….…………DAY OF DECEMBER 2024
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
Ms. Maina State Counsel;
THE ACCUSED PERSON AND HIS ADVOCATE MR WACHENJE