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JudgmentThe Republic VS BENSON WEKESA BARASA5 min read

The Republic VS BENSON WEKESA BARASA

High Court at Bungoma High Court · · D.K. Kemei

                                                           REPUBLIC OF KENYA


                                        IN THE HIGH COURT OF KENYA AT BUNGOMA


                                         CRIMINAL CASE ( MURDER) NO. E030 OF 2023


                                    REPUBLIC ……………………………………………… PROSECUTION


                                                                    VERSUS


                                  BENSON WEKESA BARASA ……………………………….. ACCUSED


                                                                         RULING


  1. The accused herein Benson Wekesa Barasa has been charged with an offence of Murder Contrary to section 203 as read with section 204 of the Penal Code.  The particulars, are that on the 7th day of August, 2023   at Mufutu village, Nasusi location in Kimilili sub County within Bungoma County unlawfully caused the death of Martin Nyongesa Sunguti.
  2. Following a plea agreement dated 29.1.2024, entered into between the accused and the prosecution, the charge of murder was reduced to one of manslaughter to which  the accused readily pleaded guilty and was thereby convicted accordingly. The particulars of the said new charge were that on the 7th day of August, 2023 at Mufutu village, Nasusi location in Kimilili Sub County within Bungoma county unlawfully caused the death of Martin Nyongesa Sunguti.
  3. Mr Shikhu, learned counsel for the defence in mitigation submitted that the accused is remorseful of the offence and that he has opted to plead to the charges and thus avoid the court from further proceedings with the remaining witnesses.  It was finally submitted that the accused   pleads for leniency and who has a family that relies on him for support.
  4. Miss Kibet for the prosecution submitted that there are no previous records in respect of the accused. She pointed out that the court should take note of the fact that a life was lost.
  5. A pre-sentence report was called for. The same is dated  27.2.2024. The same indicates that the villagers are still bitter about the incident and who torched the accused’s house and sugarcane plantation. The report further indicates that the accused has some anger related issues. The family of the deceased as well as that of the accused are apprehensive and are thus opposed to a non – custodial sentence. The local administration maintain that  accused had a history of criminality       towards    his family members due to his alcoholism  and substance abuse.  They  are of the view that the accused  does not enjoy community acceptance as they are hostile to any  community  rehabilitation.
  6. I have   considered the mitigation and the pre- sentence report as well as the oral submissions of the parties.  The accused has already  been convicted for the offence of manslaughter and that pursuant to section 205 of the Penal Code, the punishment provided for  is a life  imprisonment.  However, this is imposed upon the worst of offenders.  The Judiciary     sentencing   policy  guidelines   provide that courts ought to consider several factors before passing sentences which include  the age of the offender, whether the  accused is a first offender, whether the offender pleads guilty, commission of the offence in response to gender based violence, character and record of the offender, the possibility of reform and social adaptation of the offender etc.
  7. The Judiciary sentencing policy guidelines paragraph 4 .1  provides that a balanced  sentence strives to attain reformative, community protection and retributive objectives of punishment. These factors may not have equal weight in the difficult task of searching for an appropriate   and balanced sentence. But the  weight assigned to each factor must be  appropriate  and that the court must then determine whether the convict can be adequately sentenced with a non-custodial sentence, payment of fine, or forgiveness based on a balance of all the factors in mitigation and   aggravation.   In the base of Charo Ngumbao  Gugudu   -vs-  Republic  (2011)  eKLR   the Court of Appeal held as follows:-

“Further, the law is that sentence imposed on an accused   person must be commensurate with the moral blame worthiness of the offender and that it is not proper exercise for the court to fail to look at the facts andcircumstances of  the case in their entirety before settling for any given sentence. See Ambani -vs- Republic (1990) eKLR.”  

  1. From   the postmortem report produced by Dr Ombongi Haron (PWI), the deceased sustained a deep cut on the parietal region as well as a closed fracture of the mandible plus a bruise on the right shoulder. There was also a depressed fracture of temporal region. The cause of death was severe traumatic  brain injury due to assault. It transpired from the evidence that the accused upon learning that   some cows had grazed on his crops, he went and confronted the deceased’s family and later lay   in wait for the unsuspecting deceased whom he hit him on the head with a huge club. It also transpired that the accused had earlier alleged that the deceased was a witch and that he would finish him. It is therefore quite  clear that the accused was out to kill the deceased. Had the accused resorted to other avenues of redress such as approaching the clan elder (Mukasa), the deceased   would be alive today. The deceased died  a painful death.
  2. It is noted  from the pre-sentence report   that the accused has had some criminal tendencies in the village  due to  alcohol and drug abuse. It is also reported that he has some volatile anger and thus a hot- tempered   individual.  In the circumstances, i find a custodial   rehabilitation is suitable so that his anger related issues are addressed.  The custodial   rehabilitation will help to mould him into a better individual before being released back to the society.
  3. It is noted that the accused has been in custody since  7.8.2023  to date.  This   period will be taken into consideration.  It is also noted that the accused has been in custody since 7.8.2023 to date.  This period will be taken into consideration. It is also noted that the accused has shortened the period of the finalization of this matter and thus saved a lot of judicial   time. The court takes the same into consideration. The circumstances of the case requires that the accused be given custodial   rehabilitation which will help to mould him into a better person before rejoining the society.
  4. In the result, I order  the accused herein Benson Wekesa Barasa to serve a sentence of fifteen (15) years’ imprisonment which shall commence from the 7.8.2023. 

Dated and delivered at Bungoma this 12th Day of  April .2024

D  Kemei,

Judge.

In the Presence of:-

Benson Barasa Wekesa .....................Accused

Shikhu ................................................. for Accused

Miss Kibet..............................................for prosecution

Kizito.........................................................Court Assistant

    The Republic VS BENSON WEKESA BARASA The Republic VS BENSON WEKESA BARASA