The Republic VS BENJAMIN MULEI MUSAU The Republic VS BENJAMIN MULEI MUSAU

JUDGMENT ON PLEA BARGAIN

The accused was charged with murder contrary to section 203 as read with section 204 of the Penal Code. Particulars being that on the 3^rd day of September 2022 at Kivani Village, Kivani Sub-location in Kilungu Sub-County within Makueni County murdered Fransisca Kalondu Ngei.
He could not take plea until 18/10/2023 as it was explained by the psychiatrist that he was suffering from bipolar and was going through a manic episode.
When he took plea – the charge was read to him. He responded – twice “it is true”.
The court took time to explain to him the consequences of pleading guilty to murder contrary to section 203 as read with 204 of the Penal Code. He responded – that at the time he committed the

killing he had mental health issues and did not intend to kill the deceased. A plea of not guilty was entered. The court took note of the fact that the accused had been unwell and had just been recently certified fit to plead.

Later the court was informed that the defence had proposed a plea bargain.
The same was agreed on and was recorded on 14/02/2024 where the accused person pleaded guilty to manslaughter contrary to section 202 as read with 205 of the Penal Code. The terms of the plea agreement were that:

The Republic agrees to reduce the charge of Murder contrary to section 203 as read with section 204 of the Penal Code facing the accused person to the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
The accused person agrees to plead to the charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code; the particulars of which are that the accused person on the 3^rd day of September 2022 at Kivani village, Kivani Sub-location in Kilungu Sub-county within Makueni County caused the unlawful death of Francisca Kalondu Ngei.
The accused person admits that he committed the offence with which he is charged and agrees that the facts in the statement annexed to this agreement are true.
The accused person understands that he has the following rights:

The right to plead not guilty and already so pleaded persist in that plea.
The right to presumed innocent until proven guilty,
The right to remain silent and not to testify during the pleadings,
The right not to be compelled to give self-incriminating evidence,
The right to a full trial,
The right to legal representation,
The right to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain attendance and carry out examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.

The accused person understands that by accepting this plea agreement, he is waiving his right to a full trial and all the rights in paragraph 5 herein above.
The accused person understands that the nature of the charge of manslaughter and that whereas there is no minimum sentence, the maximum sentence is life imprisonment.
The accused person understands that the sentence to be imposed is solely at the discretion of the court.

The prosecution proposes a custodial sentence of 5 years.
The accused/defence proposes a sentence of 2 years or non-custodial sentence on condition that he visits the doctor and takes his medication.

The accused person understands that by entering into this plea bargain agreement, is waiving his right to appeal except as to the extent of the sentence.
The accused person has reviewed and accepted this agreement through his legal representative and that the same has been explained to him in Kiswahili language that he understands.

The facts of the charges were that:

On 3/9/2022, at Kivani village, Kivani Sub-location in Kilungu Sub-County, Mary Mulwa mother to accused went home and found the accused person praying. When she went inside the house, the accused followed her – he was telling her he wanted to remove something that was in her head. The mother recorded that his condition had worsened because previously he had a mental health issue and was relapsing on and off. The mother rushed to the neighbour Francisca Kalongu Ngei to assist to control the accused. The mother and the deceased came back. The accused had become more violent. The accused person charged at them – they ran in different directions (it was around 5:00 pm). Later the deceased was not traced for some time but was found to have fallen down and had been hit severally with stones – a sufuria was also put on her head. Members of public arrested accused and took him to Kola police station, body taken to Kilungu Sub-county hospital. Post-mortem was done. Doctor found that deceased had several injuries caused of death, due to head injury blunt force trauma – he provided the post-mortem as EX 1. Accused was charged with murder. Before he took plea he was subjected to psychiatric examination at the time of

plea – he was not ok. He was put on medication. He was later found fit.

The accused pleaded guilty to the facts.
He was convicted on his own plea of guilty.
In his mitigation, his advocate Mr. Hassan submitted that the accused was mentally unfit at the time he committed the offence but was not fairing well on medication. That once he understood his actions, he is remorseful and regrets the same. That he is 23 years old.
The Pre-sentence report by Probation After Care Services – Makueni points to an accused person whose mental health issues began showing when he was in class 6 and he went on to carry out bizarre acts in the home – bouts of violence, bouts of being religious – reading through the Bible and preaching loudly to the whoever would listen. His mother cannot contain him at home. She would not be able to ensure his treatment or supervise his medication. The family of the victim are absolutely not ready to see the accused back in the community. They are not ready to hold any conversations with the mother of the accused and are hostile to the idea of a non-custodial sentence. There is something in there of them saying they are not aware of the PBA. It is recommended that the accused person be committed to Mathare mental hospital for treatment.
This is because of the accused’s medical history. On 12/09/2022 the psychiatrist had made the following view about the accused:

“Not competent to take plea; or stand trial. Was having hallucinations (hearing voices) and delusions (fixed false beliefs) at the time of incidence”.

Further on 24/7/2023 the psychiatrist stated that:

“Mr Benjamin Mulei Musau is suffering schizoaffective disorder which is lifelong. It is not possible to predict the number of episodes /relapses – the disorder can however be controlled by medication as it is currently he requires lifelong follow up. He is due for review in a month.

On 16/10/2023 the doctor stated:

“The client is on treatment and is now competent to take plea and stand trial. He needs to continue with treatment which may be lifelong.”

Evidently, the accused started treatment upon committing this offence - and by taking the plea bargain he acknowledged that he had a problem that led him to kill the deceased, an innocent neighbour who came to assist his mother to assist him.
From the tune of the PSR, it appears to me that the community does not understand what a plea agreement is and I am not certain how PACs presents PBAs to the community. It appears from the report before me that the view presented out there by the PACs was that the PBA was all about forgiveness and reconciliation. It is not. I think it is important that the PACs officers present the plea bargain as it is provided for in the law. Section 137A. of the Criminal Procedure Code states:

Plea agreement negotiation (1) Subject to section 137B, a prosecutor and an accused person or his representative may negotiate and enter into an agreement in respect of—

(a) reduction of a charge to a lesser included offence;

(b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges.

(2) A plea agreement entered into under subsection (1)(a) or (b) may provide for the payment by an accused person of any restitution or compensation.

(3) A plea agreement under subsection (1) shall be entered into only after an accused person has been charged, or at anytime before judgement.

The accused may propose to plead to a lesser charge or lesser sentence or the State can propose the same. Plea bargain involves the accused person accepting his wrongdoing and presenting himself for sentence by the court. It is important that when conducting the Pre -Sentence Report inquiry when seeking the views of the victims that the PACs officer does not make it appear as if the whole thing is about reconciliation – it is also about the accused person accepting his mistake – and setting himself up for punishment. I think if the victims are aware that the person who hurt them is accepting his mistake – they would be ready to discuss the punishment or reconciliation but if they are presented without a reconciliation and forgiveness approach then definitely, that rises a a problem. It is up to them to decide whether or not they want to reconcile and forgive the accused, while it may be easier to accept that the accused has taken responsibility for his actions.
Having said so, I directed the PACs office and ODPP to have a sitting with the Victims in this case.
A further report was subsequently filed on 9^th April 2024 where the children of the deceased took the strong view that they wanted a full hearing whereby they would know how and why their mother was brutally murdered. It was their view that the accused did not have any mental health issues and they were not aware of his mental health problems. Section 137D.requires the Prosecution to cosult with certain persons before entering into the plea agreement. It states

Consultation with victim, etc. A prosecutor shall only enter into a plea agreement in accordance with section 137A—

(a) after consultation with the police officer investigating the case;

(b) with due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the accused person and the interests of the community;

(c) unless the circumstances do not permit, after affording the victim or his legal representative the opportunity to make representations to the prosecutor regarding the contents of the agreement.

The law provides that the victim will be afforded an opportunity to make presentations to the prosecutor but the victim cannot direct the manner in which the prosecution will be conducted. The duty of the prosecution is to consult the victim and take in their concerns.
In this case the prosecutor told the court that they had done their duty of informing the family of the deceased of the position thy were taking.
From the victim impact report, the family of the deceased have taken the position that they want a full hearing for the purpose of knowing why and how their mother was killed. The facts of the case set out in the plea agreement inform the court and the rest of the world how the deceased was killed. They are not saying that they have another set of facts upon which the court would base conviction.
Secondly they dispute the mental health issues of the accused yet we have the evidence of the assessment of the psychiatrist in which the diagnosis of the accused person is specified. Their evidence of the accused person’s mental health is that he schooled well and was a preacher in the market. Their views on the accused’s mental health are valid because that is how they see the accused, on the other hand the court cannot ignore the diagnosis and assessment of the psychiatrist.
In the circumstances and with a lot of respect for the views of the victim, this court has the donated powers of the people to do justice in each matter, to weigh the rights of each person as against those of the other and to find that fine delicate balance that ensures that justice is done to each.
Under s. 137(J) the court is empowered to reject a plae agreement for reasons to be recorded.
Section 137K. provides for the Withdrawal of plea

An accused person may withdraw a plea of guilty pursuant to a plea agreement—

(a) prior to acceptance of the plea by the court, for any reason; or

(b) after the court accepts and convicts on the plea, but before it passes a sentence, if the accused person can demonstrate, to the satisfaction of the court, a fair and just reason for requesting the withdrawal.

Evidently it is within the powers of the court to reject a PBA. There must be good reason for the same . I am not persuaded that the justice of this case will not be served if the PBA herein is sustained.
The accused person herein has literally pleaded guilty. He has been convicted and the issue is the punishment he should get. I do not find good reason to reject the PBA.
It is the accused person who has the right to witjdraw from a plea agreement.
In the circumstances the question is what is the appropriate sentence?
The prosecution proposes 5 years’ imprisonment; the accused proposes two years with an option of non-custodial sentence with a condition to attend hospital for treatment.
Considering the circumstances of the offence, and that the accused pleaded guilty, I find that a sentence of 10 years’ imprisonment from the date of arrest is suitable.
Other than rehabilitation and punishment, this will enable if possible the victim offender/Mediation reconciliation, the discussions of any recompense by the family of the accused all through the collaboration of the PACs and Prisons welfare.
The additional condition is the accused person will undergo continuous mental health treatment while in prison.
R/A 14 days

Dated signed and delivered in open court on 24/04/2024