1. The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code that on 6/12/2021 at Makwatani area, in Mwereni location in Lunga Lunga Sub-County within Kwale County, murdered Ngome Dena Mwangoni.
2. On the first occasion when the information was read to him the accused person immediately conceded that he had killed the deceased and added that it was because he found him engaging in sexual intercourse with his wife in his home. The court entered a plea of not guilty and called upon parties to consider a possibility of a plea bargain.
3. The case was fixed for hearing but never proceeded for various reasons. However, on the date fixed for hearing, the prosecution informed the court that they had engaged in plea negotiation with the accused person which subsequently resulted in the accused person entering a plea bargain agreement with the prosecution. The plea bargain agreement dated 3/6/2024 was adopted by the court upon it being satisfied that the accused person had understood the contents and that he had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion.
4. On 3/6/2025 the plea bargain agreement having been adopted the information on the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code was put to the accused person who pleaded guilty to thereto.
5. Upon the accused person pleading guilty to the information, the State presented the following facts in support of the charge:
On 6th December 2021, at about 17.30 hours, the accused person left his home and informed his wife, one MCHEMUNDA BORA JEGO that he was going to Mwangulu Market to attend to a personal issue. He informed her that there was a possibility that he might not come back that day. As the accused person’s wife was preparing supper, the deceased who was an elderly man was new in the village came to the home. The deceased met the accused person’s wife and informed her that he was a herbalist and could treat her and tame her husband in a way that he would never engage in love affairs with other women. The accused person’s wife agreed to this treatment and the two agreed to meet at a nearby bush later in the evening. At about 8.00 p.m. the accused person’s wife left her house and informed her children that she was going to a nearby bush to answer a call of nature. She then went and met up with the deceased at the bush. The deceased had carried his traditional medicine famously known as ‘Tunguri’ which medicine, according to him, could only be administered during a sexual act. Shortly thereafter, at about 8.30 P.m. the accused person arrived home and found the children alone. Upon inquiry, they informed him that their mother had gone to the bush. The accused walked towards the direction he was shown by the children and noticed a light from a distance. He advanced towards the light and caught the deceased person and his wife having sex in the bush. He immediately attacked the deceased person who produced a panga that was in his possession. The accused person’s wife ran away and left the two men fighting. The accused person who was stronger of the two overpowered the deceased, snatched the panga from him and hacked him to death. On seeing that he had killed the deceased, the accused went and reported the matter to his parents who advised him to report at Mwangulu Police Post. The accused person then surrender himself at Mwangulu police post where he was arrested and placed in the cells. Police officers visited the scene and found the lifeless body of the deceased lying in a pool of blood. At the scene they were also able to recover the following items: - A panga with a black rubber handle, a black brassiere, red underpants, a torch and what was believed to be traditional medicine. Later, a post- mortem was carried out on at coast general teaching and referral hospital and the doctor concluded that the deceased died as a result of severe traumatic brain injury with multiple deep sharp wounds on the head and decapitation of the anterior neck. The accused person was charged with the offence before court.
Investigations were carried out and the accused person was charged with the offence of murder which has now been substituted with manslaughter upon the plea agreement.”
6. The accused person admitted the facts to be correct whereupon he was convicted.
7. The State indicated that they had no records of previous convictions for the accused person.
8. In mitigation Mr. Mbwiza learned counsel for the accused person asked that the accused person should be considered for a lenient and non-custodial or in the alternative a most lenient sentence. Learned counsel informed the court that the accused person had taken responsibility for the offence. He said that the actions by the accused person were not out of malice as he did not set out to kill the deceased. That the offence was not premeditated but spontaneous and under provocation and that what happened was in the heat of passion under sudden provocation and before there was time to cool off and any other person placed under similar circumstances would react in the same way. That the accused person is married to one wife and they have nine children three of whom are minors with the youngest being four years old. That he also takes care of his elderly parents, his father aged 88 years and mother 67 years.
9. Learned counsel has reminded the court that the accused person entered a plea bargain and pleaded guilty thereby saving the court’s time and other resources.
10. The court called for a pre-sentence report and victim impact statement. In the pre-sentence report dated 19/6/2025 it was stated that the accused person readily admitted the offence and regrets the fact that he was unable to control his anger.
11. The report further indicates that the accused person had good community ties and family members asked the court to grant him a non-custodial sentence.
12. The victim impact statement indicates that the deceased was a major pillar of the family and provided for them through cultivation of crops and livestock keeping. They indicated that some family members were still traumatized by the death of the deceased, especially given the circumstances in which he met his death. During the social inquiry the family of the victims expressed lack of interest in restitution and reconciliation. There are no fears posed by the offender to them as they were not related and came from different areas. The deceased’s family members wish that justice be served to them for the loss of their loved one and the negative impact it has brought to them.
13. The offence of manslaughter attracts a maximum sentence of life imprisonment as provided for under Section 205 of the Penal Code.
14. The sentencing objectives in Kenya have been captured in the Sentencing Policy Guidelines, 2023 at paragraph 1.3 to be the following: -
a) Retribution: to punish the offender for his/her criminal conduct in a just manner.
b) Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
c) Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.
d) Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
e) Community protection: to protect the community by incapacitating the offender.
f) Denunciation: to communicate the community’s condemnation of the criminal conduct.
15. In deciding whether to impose a custodial or non-custodial sentence, the Sentencing Policy Guidelines, 2023 at paragraph 2.3.15 provides that the court is required to consider the following factors: -
a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
b) Criminal history of the offender. Considering 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.
16. I have considered the mitigation tendered by learned counsel for the accused person, the fact that he is a first offender, the gravity of the charge, the mitigating as well as the aggravating factors.
17. The aggravating factors are that the accused person took away the life of another person. He used a weapon, a panga to cause the injuries that resulted in the death of the deceased.
18. The mitigating factors are that he pleaded guilty to the offence and did not run away after committing the offence. He was the one who reported the incident to the police and he was co-operative throughout the investigations.
19. In the plea bargain agreement, the accused person asked to be considered for a non-custodial sentence while the prosecution recommended that she be sentenced to three years’ imprisonment.
20. I have taken into consideration these recommendations but remembering that sentencing is at the discretion of the court.
21. In the case of Barasa alias Munika v Republic [2025] KECA 236 (KLR) the Court of Appeal while finding a sentence of 30 years imprisonment to be excessive in the circumstances of the case and reducing it to 15 years imprisonment where the appellant had pleaded guilty on a charge of the murder of his wife which was reduced to manslaughter upon entering a plea agreement with the State said thus:
“Plea agreements serve an important beneficial role in the Criminal Justice System. They increase the efficiency of the system by saving time and money which would otherwise be spent on lengthy trials. They also benefit the victim and/or her family because they are spared the public trial and its accompanying emotional trauma. Further, plea agreements offer more certainty to both the prosecutor (and victims of the crime) and the accused person. It is, therefore, a judicial policy to encourage and incentivize plea agreements in appropriate cases.”
22. In the case of GEDION KENGA MAITA vs REPUBLIC [1997] KECA 184 (KLR) the deceased who was the appellant’s brother, when quarrelling with the appellant, told the appellant that he (appellant) was a useless man with no wife and children and that upon his death, nobody would remember him. To cap it all, the deceased kicked the appellant. The appellant lost his cool, ran and got a knife and stabbed his brother who subsequently succumbed to that injury. The appellant ran and disappeared but he subsequently gave himself up to the police. On these facts the appellant admitted a charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The offer to plead guilty to the lesser charge of manslaughter was acceptable to the prosecution and the court did accept it. He was sentenced to life imprisonment. On appeal, the Court of Appeal said the sentence of life in the circumstances of the case was not only unreasonable but outrageous and there no basis for it and reduced the sentence of life imprisonment to one of five years imprisonment.
23. In Ambari Gandani Konde v Republic [2000] KECA 400 (KLR) the Court of Appeal in Mombasa sustained a sentence of 5 years imprisonment for the appellant who on seeing his wife in flagrante delicto, he got annoyed and hit her with a hoe and killed her. He said he intended to get hold of the man but he had escaped.
24. In Republic v PM [2022] KEHC 3062 (KLR) the High Court sentenced the accused person to an the period he had been in custody since he was charged on 13/12/2018 to 30/6/2022 being 31/2 years for the offence of manslaughter after a plea bargain where the accused person acted in the heat of passion having caught his wife committing adultery in flagrante delicto with two men with the court finding that he was remorseful for his actions; and he appeared genuinely so and there was no doubt that the offence was not planned and the court found that there were powerful extenuating circumstances in this case.
25. I am well guided by the above decisions. I have considered the circumstances surrounding the commission of the offence herein, the mitigation by the accused person and the fact that the accused person is a first offender and the recommendation by the Probation Officer. I have also taken into account the doctrine of proportionality in sentencing, that the sentence must be commensurate to the crime committed. Consequently, I come to the conclusion that a sentence that is appropriate and will meet the justice of this case is 3 years imprisonment which I hereby pass upon the accused person to underscore the fact that it is not proper to take away human life.
26. The sentence includes the time the accused person was remanded in custody before he was released on bond as provided for under section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya.
27. Orders accordingly.
Dated, Signed and Delivered at Kwale on the virtual platform Teas this 1st day of July, 2025.
ANDAYI W. F., J.
JUDGE
In the presence of:
Accused present from Shimo La Tewa Women prison.
Vallerie for the State.
Mbwiza for the accused person.
Ummu: Court Assistant.
ANDAYI W. FRANCIS
JUDGE
2. On the first occasion when the information was read to him the accused person immediately conceded that he had killed the deceased and added that it was because he found him engaging in sexual intercourse with his wife in his home. The court entered a plea of not guilty and called upon parties to consider a possibility of a plea bargain.
3. The case was fixed for hearing but never proceeded for various reasons. However, on the date fixed for hearing, the prosecution informed the court that they had engaged in plea negotiation with the accused person which subsequently resulted in the accused person entering a plea bargain agreement with the prosecution. The plea bargain agreement dated 3/6/2024 was adopted by the court upon it being satisfied that the accused person had understood the contents and that he had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion.
4. On 3/6/2025 the plea bargain agreement having been adopted the information on the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code was put to the accused person who pleaded guilty to thereto.
5. Upon the accused person pleading guilty to the information, the State presented the following facts in support of the charge:
On 6th December 2021, at about 17.30 hours, the accused person left his home and informed his wife, one MCHEMUNDA BORA JEGO that he was going to Mwangulu Market to attend to a personal issue. He informed her that there was a possibility that he might not come back that day. As the accused person’s wife was preparing supper, the deceased who was an elderly man was new in the village came to the home. The deceased met the accused person’s wife and informed her that he was a herbalist and could treat her and tame her husband in a way that he would never engage in love affairs with other women. The accused person’s wife agreed to this treatment and the two agreed to meet at a nearby bush later in the evening. At about 8.00 p.m. the accused person’s wife left her house and informed her children that she was going to a nearby bush to answer a call of nature. She then went and met up with the deceased at the bush. The deceased had carried his traditional medicine famously known as ‘Tunguri’ which medicine, according to him, could only be administered during a sexual act. Shortly thereafter, at about 8.30 P.m. the accused person arrived home and found the children alone. Upon inquiry, they informed him that their mother had gone to the bush. The accused walked towards the direction he was shown by the children and noticed a light from a distance. He advanced towards the light and caught the deceased person and his wife having sex in the bush. He immediately attacked the deceased person who produced a panga that was in his possession. The accused person’s wife ran away and left the two men fighting. The accused person who was stronger of the two overpowered the deceased, snatched the panga from him and hacked him to death. On seeing that he had killed the deceased, the accused went and reported the matter to his parents who advised him to report at Mwangulu Police Post. The accused person then surrender himself at Mwangulu police post where he was arrested and placed in the cells. Police officers visited the scene and found the lifeless body of the deceased lying in a pool of blood. At the scene they were also able to recover the following items: - A panga with a black rubber handle, a black brassiere, red underpants, a torch and what was believed to be traditional medicine. Later, a post- mortem was carried out on at coast general teaching and referral hospital and the doctor concluded that the deceased died as a result of severe traumatic brain injury with multiple deep sharp wounds on the head and decapitation of the anterior neck. The accused person was charged with the offence before court.
Investigations were carried out and the accused person was charged with the offence of murder which has now been substituted with manslaughter upon the plea agreement.”
6. The accused person admitted the facts to be correct whereupon he was convicted.
7. The State indicated that they had no records of previous convictions for the accused person.
8. In mitigation Mr. Mbwiza learned counsel for the accused person asked that the accused person should be considered for a lenient and non-custodial or in the alternative a most lenient sentence. Learned counsel informed the court that the accused person had taken responsibility for the offence. He said that the actions by the accused person were not out of malice as he did not set out to kill the deceased. That the offence was not premeditated but spontaneous and under provocation and that what happened was in the heat of passion under sudden provocation and before there was time to cool off and any other person placed under similar circumstances would react in the same way. That the accused person is married to one wife and they have nine children three of whom are minors with the youngest being four years old. That he also takes care of his elderly parents, his father aged 88 years and mother 67 years.
9. Learned counsel has reminded the court that the accused person entered a plea bargain and pleaded guilty thereby saving the court’s time and other resources.
10. The court called for a pre-sentence report and victim impact statement. In the pre-sentence report dated 19/6/2025 it was stated that the accused person readily admitted the offence and regrets the fact that he was unable to control his anger.
11. The report further indicates that the accused person had good community ties and family members asked the court to grant him a non-custodial sentence.
12. The victim impact statement indicates that the deceased was a major pillar of the family and provided for them through cultivation of crops and livestock keeping. They indicated that some family members were still traumatized by the death of the deceased, especially given the circumstances in which he met his death. During the social inquiry the family of the victims expressed lack of interest in restitution and reconciliation. There are no fears posed by the offender to them as they were not related and came from different areas. The deceased’s family members wish that justice be served to them for the loss of their loved one and the negative impact it has brought to them.
13. The offence of manslaughter attracts a maximum sentence of life imprisonment as provided for under Section 205 of the Penal Code.
14. The sentencing objectives in Kenya have been captured in the Sentencing Policy Guidelines, 2023 at paragraph 1.3 to be the following: -
a) Retribution: to punish the offender for his/her criminal conduct in a just manner.
b) Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
c) Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.
d) Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
e) Community protection: to protect the community by incapacitating the offender.
f) Denunciation: to communicate the community’s condemnation of the criminal conduct.
15. In deciding whether to impose a custodial or non-custodial sentence, the Sentencing Policy Guidelines, 2023 at paragraph 2.3.15 provides that the court is required to consider the following factors: -
a) Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanor.
b) Criminal history of the offender. Considering 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.
16. I have considered the mitigation tendered by learned counsel for the accused person, the fact that he is a first offender, the gravity of the charge, the mitigating as well as the aggravating factors.
17. The aggravating factors are that the accused person took away the life of another person. He used a weapon, a panga to cause the injuries that resulted in the death of the deceased.
18. The mitigating factors are that he pleaded guilty to the offence and did not run away after committing the offence. He was the one who reported the incident to the police and he was co-operative throughout the investigations.
19. In the plea bargain agreement, the accused person asked to be considered for a non-custodial sentence while the prosecution recommended that she be sentenced to three years’ imprisonment.
20. I have taken into consideration these recommendations but remembering that sentencing is at the discretion of the court.
21. In the case of Barasa alias Munika v Republic [2025] KECA 236 (KLR) the Court of Appeal while finding a sentence of 30 years imprisonment to be excessive in the circumstances of the case and reducing it to 15 years imprisonment where the appellant had pleaded guilty on a charge of the murder of his wife which was reduced to manslaughter upon entering a plea agreement with the State said thus:
“Plea agreements serve an important beneficial role in the Criminal Justice System. They increase the efficiency of the system by saving time and money which would otherwise be spent on lengthy trials. They also benefit the victim and/or her family because they are spared the public trial and its accompanying emotional trauma. Further, plea agreements offer more certainty to both the prosecutor (and victims of the crime) and the accused person. It is, therefore, a judicial policy to encourage and incentivize plea agreements in appropriate cases.”
22. In the case of GEDION KENGA MAITA vs REPUBLIC [1997] KECA 184 (KLR) the deceased who was the appellant’s brother, when quarrelling with the appellant, told the appellant that he (appellant) was a useless man with no wife and children and that upon his death, nobody would remember him. To cap it all, the deceased kicked the appellant. The appellant lost his cool, ran and got a knife and stabbed his brother who subsequently succumbed to that injury. The appellant ran and disappeared but he subsequently gave himself up to the police. On these facts the appellant admitted a charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The offer to plead guilty to the lesser charge of manslaughter was acceptable to the prosecution and the court did accept it. He was sentenced to life imprisonment. On appeal, the Court of Appeal said the sentence of life in the circumstances of the case was not only unreasonable but outrageous and there no basis for it and reduced the sentence of life imprisonment to one of five years imprisonment.
23. In Ambari Gandani Konde v Republic [2000] KECA 400 (KLR) the Court of Appeal in Mombasa sustained a sentence of 5 years imprisonment for the appellant who on seeing his wife in flagrante delicto, he got annoyed and hit her with a hoe and killed her. He said he intended to get hold of the man but he had escaped.
24. In Republic v PM [2022] KEHC 3062 (KLR) the High Court sentenced the accused person to an the period he had been in custody since he was charged on 13/12/2018 to 30/6/2022 being 31/2 years for the offence of manslaughter after a plea bargain where the accused person acted in the heat of passion having caught his wife committing adultery in flagrante delicto with two men with the court finding that he was remorseful for his actions; and he appeared genuinely so and there was no doubt that the offence was not planned and the court found that there were powerful extenuating circumstances in this case.
25. I am well guided by the above decisions. I have considered the circumstances surrounding the commission of the offence herein, the mitigation by the accused person and the fact that the accused person is a first offender and the recommendation by the Probation Officer. I have also taken into account the doctrine of proportionality in sentencing, that the sentence must be commensurate to the crime committed. Consequently, I come to the conclusion that a sentence that is appropriate and will meet the justice of this case is 3 years imprisonment which I hereby pass upon the accused person to underscore the fact that it is not proper to take away human life.
26. The sentence includes the time the accused person was remanded in custody before he was released on bond as provided for under section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya.
27. Orders accordingly.
Dated, Signed and Delivered at Kwale on the virtual platform Teas this 1st day of July, 2025.
ANDAYI W. F., J.
JUDGE
In the presence of:
Accused present from Shimo La Tewa Women prison.
Vallerie for the State.
Mbwiza for the accused person.
Ummu: Court Assistant.
ANDAYI W. FRANCIS
JUDGE