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JudgmentThe Republic VS aternus mbithi ndeto6 min read

The Republic VS aternus mbithi ndeto

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

JUDGMENT ON PLEA AGREEMENT 

  1. The accused was charged with contrary to section 203 as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya.
  2. He pleaded not guilty.
  3. He later – pursuant to section 137 of the Criminal Procedure code entered into a plea bargain agreement with the prosecution with the counsel of his advocate Ms. Ong’onga.
  4. The same was recorded on 3rd April 2024:

Accused was sworn and stated in Kiswahili

I am Athanus Mbithi Ndeto. I live in East Ngosini, I take casual jobs and construction work. I understand I was charged with murder. I have entered into a plea bargain agreement with advise of my lawyer – I have on the plea bargain admitted the offence – of killing of manslaughter. – I have entered into the plea agreement voluntarily. I understand that I have right to full hearing and that the  court will determine my sentence.

I formed the view that the accused understands the nature of the plea agreement and directed that the negotiated charge be read and explained to him.

The Charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code read to and explained to the accused in Kiswahili:  He Pleaded guilty entered and the state proceeded through Ms. Nyakibia to present the facts.

Facts: On the 22/08/2022 there was a report at Makueni police station by village elder James Kyalo of Miangini village, Kikumini location. He reported that he had received report that one Francis Kioko had been killed and his body was in the house. The police and crime scene officer visited Kikumini led by the village elder. at the scene in the house of deceased the found the deceased in the house on the floor face down, his back facing the sitting room. He appeared to have been headed to the bedroom. He was bleeding from the mouth. They processed the scene, they took the body to county referral hospital for postmortem. Investigations began, witnesses emerged.

One Patrick Matulo Masaku – was living with deceased in the same house said about 1:40 am he was woken by noise outside the house – then the door was opened – the deceased appeared to be talking to someone asking: why have you beaten me like that. Patrick went out – with a torch – saw person leaving. He did not identify the person who was in a black trouser. Before the person ran off he locked deceased door from outside. Patrick came out through the window and called neighbors. That is how village elder was informed and called police.

The wife of the of accused who is not a compellable witness told investigators that the accused went home that night around 3:00 am and asked for food. He also told her he had left his things at deceased’s house and wanted her to escort him to the house saying he had had beat him. She refused. He then took his clothes saying he was going far – and would tell the family upon arrival.

There were some people who saw him in the bar with the deceased prior to the incident. His phone and black cap were picked at the scene by police and he identified. They were produced as exhibits

A postmortem was carried out and the report was we produces as evidence cause of death was inter cerebral hemorrhage – PM – PEXZ 1.

The deceased suffered injury on back of head – evidence that he was hit from the back of the head. The accused was charged with murder and through the Plea Bargain Agreement settled on manslaughter.

In response the accused pleaded that the facts were true and was convicted on his own plea of guilty.

The prosecutor told the court that the accused had no previous records.

In Mitigation Ms. Ong’ong’a submitted that the accused was very remorseful for the crime ad that is why he agreed to the plea bargain. That he was intoxicated on the day and has indicated his intention to avoid alcohol. That he was undergoing a bible studies course and had certificates for the course he has undertaken. That he is young, with two young children, and is the breadwinner of the family, that he urged the court to see his  sincerity and grant him a chance at life  to take care of his family. The court was urged to give a non-custodial sentence, and to consider that the accused had been in custody since 2022.

  1. I sought a pre-sentence report from PACs.
  2. It was stated and it stated in the Circumstances of offence that :
  • During the interview the accused accepted the responsibility of the offence where he explained during the fateful day, he was in one of the clubs at their home market, at around 8:0-0 the deceased came in and they started drinking alcohol together. Later the accused asked the deceased about his promise of paying the accused the money he had worked on making bricks for him. However, the deceased responded rudely. At about 11:50pm, the two decided to go back home. On their way the disagreement about the debt started again and that is when fight between the two began. The accused admitted hitting the deceased and he fall on the ground. The accused proceeded to his house. It is on the following morning that he heard the deceased succumbed to his injuries.

The report also described the deceased Francis Kioko Nzesi as close neighbour and friend to the accused’s family. He was 50 years at time of his death. He was separated from his wife with whom hey had two grown up children. He was casual laborer within the village. He was described as friendly and peaceful person to his family and the community at large.

With respect to the Victim’s concerns: The secondary victims stated that they do not hold any grudge against the accused, The two families had discussed before the burial and agreed that the accused family would compensate the loss of their kin but this had not happened as at the time of the report. It was noted that there was no conflict between the two families, and that the family of the accused had family participated in the burial arrangements of the deceased.

  1. The only issue then is what sentence would suit the circumstances of the case.
  2. The accused would like a non-custodial sentence. I did not see a recommendation from DPP
  3. From the admitted and agreed facts the accused and the deceased were drunk. They fought over a debt but it was the accused who hit the deceased on the head causing him the injuries that led to his death. The accused has anger issues that require to be dealt with and violence will not resolve disputes.
  4. The accused has taken responsibility for his actions, by pleading guilty to the charge of manslaughter which in the statute book carries a sentence of up to life imprisonment.
  5. Current jurisprudence is that life imprisonment amounts to violation of a person’s rights and courts have been giving determinate sentences that reflect the seriousness of the offence.
  6. The sentencing policy guidelines acknowledge that no case is the same as the other, and require that one considers both the mitigation and aggravating circumstances in arriving at the sentences. The report by PACs has tangible misgivings on the accused getting a non-custodial sentence.
  7. In this case having done so, I am of the view that a non-custodial sentence would not be suitable.
  8. The accused is sentenced to 5 years’ imprisonment with effect from the date of remand : 14th September 2022.
  9. ROA 14 DAYS

Dated, signed and delivered 29th May 2024

…………………………………………..

Mumbua T Matheka

Judge

NB the system has distorted the paragraphing

    The Republic VS aternus mbithi ndeto The Republic VS aternus mbithi ndeto