1. The accused person was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63) Laws of Kenya.
2. The particulars of the offence were that EVERLYNNE WANJIKU WAIRIMU on the 27th August, 2022 at Bahati Estate,Kamkunji Sub-County within Nairobi County murdered JAMES MUNGAI WARUIRU ALIAS KADUNGO ALIAS KADUSH.
3. The accused person was tried and convicted for the offense of Manslaughter on 22 nd January 2026 when this court delivered its judgment in the matter.
4. The court immediately called for a pre-sentence report which was filed by the probation department on 20 th April 2026.
5. The report was shared with the defense on the same date the defense tendered the mitigation for the accused stating that the accused person was deeply remorseful.
6. The accused sought forgiveness from the court and the family saying that she regretted her actions.
7. The defense told the court that she is a single mother and has two young daughters who require parental care.
8. Counsel urged the court to consider imposing a non -custodial sentence as well as consider time spent in custody.
9. The defense told the court that the accused had spent 2 years 4 months before release on bail and has now been in custody for 3 months since 22/1/2026. Cumulatively as at the date of mitigation the accused had spent a period of 2 years 7 months in custody which this court was urged to consider the spirit of Section 333(2) of the Criminal procedure Code.
10. Counsel further added that when the accused was out on bail she integrated very well with the community.
11. According to the defense she is rehabilitated thus incarceration should not be the preferred sentence.
12. The court was also told that she had gotten pregnant upon release on bail and that the suitable sentence would be a non- custodial sentence. The defense however did not provide any medical evidence to support the assertion.
13. Counsel pleaded for leniency and urged the court to consider the presentence report.
14. In the event this court was to consider custodial sentence, the defense proposed that a custodial sentence of not more than 2 years would be adequate.
15. The prosecution on its part submitted that the deceased was a young man of 29years and had a family. The prosecution urged the court to take into account the fact that the deceased’s life was cut short by the accused and that his young child was left without a father. The widow was said to have forgiven the accused but the deceased’s sister was still bitter.
16. The prosecution therefore called for a custodial sentence of upto 15 years imprisonment.
17. The court having heard both counsel, considered the pre-sentence report and noted that the Presentence report by the probation officer Salome Muthoni dated 17/4/2026 states;-
“ COMMUNITY'S ATTITUDE TOWARDS THE OFFENDER AND THE OFFENCE
The community represented by the area assistant chief, Gichi area stated that he knows the offender and her family well, she relates well with members of the community and engages in business within the locality as the offence was committed away from the locality. He is ready to work with our office to assist in her rehabilitation, The community is ready to accept her back as she related well with them while she lived among them.
CONCLUSION
Your lordship, the accused is a 33year-old, who is a mother of two children, coming from a broken family and single headed family, raised in a low economic and social status. She has had minimal positive parental guidance, mentorship and support from her father was an alcoholic.
She managed to attain primary education dropping out in secondary level due to pregnancy, she engaged in casual labourer mainly working as until the offence was committed. She has been in two failed marriages with a consensual relation with the victim. Their relationship was marred with violence which eventually predisposed her leading to committal of the offence.
The offender coming from a broken single headed family, poor educational levels due to pregnancy as well as several failed marriages were some of the push-pull factors creating a criminogenic trail in her life.
The offender is a loving and caring mother who took care of her children until the time of the offence. Her children are currently in the custody of her mother and is currently five months pregnant. She has family support who are ready to work with our office in her rehabilitation journey. Family members ask the court to be lenient towards the offender and grant her a non-custodial sanction so that she may be able to take care of her children as well as consider current pregnancy.
The community represented by the Area assistant chief are ready to accept the offender back into the society as she relates well.
The secondary victims consisting of the only surviving sister would like her to get the harshest punishment possible while the wife has no issue if the offender is granted a lenient or non-custodial sentence.
The offender may be considered for a non-custodial sentence so as she can take up her care giving responsibilities towards her children. She may be considered for empowerment in entrepreneurial skills, guidance and counselling in anger management, self-awareness to increase her self- esteem. The offender meets the threshold for a non-custodial sentence.’’ (emphasis added)
18. The offense of Manslaughter attracts a maximum sentence of life imprisonment. However, the trial court retains the discretion to impose any lesser sentence depending on the circumstances of a particular case.
19. The accused in this matter committed the offence in circumstances that on the face of it appeared highly provocative.
20. The deceased’s attempt to defile his daughter and the threats he issued to them prior to the knife stab were an open invitation to the accused for a nasty confrontation and that indeed led to him being stabbed as per the evidence of Pw2.
21. The deceased’s action was not only irresponsible but also reprehensible. If for some reason he had differences with the accused and considered her to be a person of loose morals, the answer to his frustration was not to prey on their innocent daughter and defile her to punish the accused.
22. The thinking and intended action was outrightly sadistic and morally unacceptable in a civilized society.
23. The daughter Pw2 had nothing to do with her mother’s turpitude and the deceased had the option of ending his relationship with the accused without venting his frustrations on an innocent child.
24. The witness Pw2 would have been sexually assaulted were it not for the timely intervention by the accused.
25. The accused may have acted disproportionately in the circumstances but one cannot ignore the fact that it was the deceased who had the knife that ended his life.
26. The goals of sentencing include rehabilitation, denunciation and deterrence. The court bears in mind that in sentencing proportionality is key taking into account the circumstances of the case and the mitigation of the accused.
27. The accused gave the deceased one fatal stab thus the reduction of the offence from murder to Manslaughter and the offense was committed in what were circumstances of extreme and sudden provocation.
28. In the case EI S/O KABAYA VS REPUBLIC [1961] EA the court held:
“In consideration whether the defence of provocation was sufficient to reduce the offence to manslaughter it is material to consider the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used.”
29. The court considered the degree of retaliation in view of the circumstances of the case and noted that the accused administered a single blow. The number of blows is an important consideration in determining the aggravated nature of the Manslaughter.
30. In the case of Mancini v Director of Public prosecutions 1964 CR A page, it was held by the House of Lords that to reduce an offence of murder to manslaughter it is necessary to take into account the instrument with which the homicide was effected. “in applying the test it is of particular importance……to take into account the instrument with which the homicide was effected, for to retort, on the heat of passion induced by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”
31. The nature of the weapon is also an important consideration and in this case the deceased provided the weapon that ended his life.
32. In all circumstances the action of the accused was not such that it would attract a heavy penalty.
33. The probation department has proposed a non -custodial sentence whereas the prosecution has called for a stiff penalty of upto 15 years imprisonment.
34. This court has considered all the facts and the mitigation offered by the accused as well as the conduct of the deceased leading to the confrontation that culminated in his death. The community attitude towards the offender is very positive and given the circumstances under which the offence was committed, to sent to prison custody for a period of 15 years as proposed by the prosecution would be unjust in the circumstances.
35. The deceased courted his own death through his incestuous conduct which must have provoked the accused beyond control. The court is alive to the ever-rising cases of sexual violence against women in this country and men must be careful in the manner they seek to quench their sexual thirst. It is important to mention that children must not be touched at all. It is the duty of the adult members of the family to protect children against sexual harassment and or violation. The accused must have been incensed by the deceased’s threat to their daughter and that led her into committing the offence.
36. The court does not by any means whatsoever intend to justify the accused person’s action but each case must be determined on the basis of its own facts.
37. It is the considered view of this court that a custodial sentence of 4 years imprisonment less the cumulative period spent in custody would be a proportionate sentence.
38. The accused shall therefore serve 4 years imprisonment less the cumulative period spent in custody before sentencing. The prison authorities in computing the sentence shall take into account the period the accused person spent in custody before release on bail and the period spent after bail was cancelled.
39. The accused has a right of appeal against sentence within 14 days.
40. It is so ordered.
2. The particulars of the offence were that EVERLYNNE WANJIKU WAIRIMU on the 27th August, 2022 at Bahati Estate,Kamkunji Sub-County within Nairobi County murdered JAMES MUNGAI WARUIRU ALIAS KADUNGO ALIAS KADUSH.
3. The accused person was tried and convicted for the offense of Manslaughter on 22 nd January 2026 when this court delivered its judgment in the matter.
4. The court immediately called for a pre-sentence report which was filed by the probation department on 20 th April 2026.
5. The report was shared with the defense on the same date the defense tendered the mitigation for the accused stating that the accused person was deeply remorseful.
6. The accused sought forgiveness from the court and the family saying that she regretted her actions.
7. The defense told the court that she is a single mother and has two young daughters who require parental care.
8. Counsel urged the court to consider imposing a non -custodial sentence as well as consider time spent in custody.
9. The defense told the court that the accused had spent 2 years 4 months before release on bail and has now been in custody for 3 months since 22/1/2026. Cumulatively as at the date of mitigation the accused had spent a period of 2 years 7 months in custody which this court was urged to consider the spirit of Section 333(2) of the Criminal procedure Code.
10. Counsel further added that when the accused was out on bail she integrated very well with the community.
11. According to the defense she is rehabilitated thus incarceration should not be the preferred sentence.
12. The court was also told that she had gotten pregnant upon release on bail and that the suitable sentence would be a non- custodial sentence. The defense however did not provide any medical evidence to support the assertion.
13. Counsel pleaded for leniency and urged the court to consider the presentence report.
14. In the event this court was to consider custodial sentence, the defense proposed that a custodial sentence of not more than 2 years would be adequate.
15. The prosecution on its part submitted that the deceased was a young man of 29years and had a family. The prosecution urged the court to take into account the fact that the deceased’s life was cut short by the accused and that his young child was left without a father. The widow was said to have forgiven the accused but the deceased’s sister was still bitter.
16. The prosecution therefore called for a custodial sentence of upto 15 years imprisonment.
17. The court having heard both counsel, considered the pre-sentence report and noted that the Presentence report by the probation officer Salome Muthoni dated 17/4/2026 states;-
“ COMMUNITY'S ATTITUDE TOWARDS THE OFFENDER AND THE OFFENCE
The community represented by the area assistant chief, Gichi area stated that he knows the offender and her family well, she relates well with members of the community and engages in business within the locality as the offence was committed away from the locality. He is ready to work with our office to assist in her rehabilitation, The community is ready to accept her back as she related well with them while she lived among them.
CONCLUSION
Your lordship, the accused is a 33year-old, who is a mother of two children, coming from a broken family and single headed family, raised in a low economic and social status. She has had minimal positive parental guidance, mentorship and support from her father was an alcoholic.
She managed to attain primary education dropping out in secondary level due to pregnancy, she engaged in casual labourer mainly working as until the offence was committed. She has been in two failed marriages with a consensual relation with the victim. Their relationship was marred with violence which eventually predisposed her leading to committal of the offence.
The offender coming from a broken single headed family, poor educational levels due to pregnancy as well as several failed marriages were some of the push-pull factors creating a criminogenic trail in her life.
The offender is a loving and caring mother who took care of her children until the time of the offence. Her children are currently in the custody of her mother and is currently five months pregnant. She has family support who are ready to work with our office in her rehabilitation journey. Family members ask the court to be lenient towards the offender and grant her a non-custodial sanction so that she may be able to take care of her children as well as consider current pregnancy.
The community represented by the Area assistant chief are ready to accept the offender back into the society as she relates well.
The secondary victims consisting of the only surviving sister would like her to get the harshest punishment possible while the wife has no issue if the offender is granted a lenient or non-custodial sentence.
The offender may be considered for a non-custodial sentence so as she can take up her care giving responsibilities towards her children. She may be considered for empowerment in entrepreneurial skills, guidance and counselling in anger management, self-awareness to increase her self- esteem. The offender meets the threshold for a non-custodial sentence.’’ (emphasis added)
18. The offense of Manslaughter attracts a maximum sentence of life imprisonment. However, the trial court retains the discretion to impose any lesser sentence depending on the circumstances of a particular case.
19. The accused in this matter committed the offence in circumstances that on the face of it appeared highly provocative.
20. The deceased’s attempt to defile his daughter and the threats he issued to them prior to the knife stab were an open invitation to the accused for a nasty confrontation and that indeed led to him being stabbed as per the evidence of Pw2.
21. The deceased’s action was not only irresponsible but also reprehensible. If for some reason he had differences with the accused and considered her to be a person of loose morals, the answer to his frustration was not to prey on their innocent daughter and defile her to punish the accused.
22. The thinking and intended action was outrightly sadistic and morally unacceptable in a civilized society.
23. The daughter Pw2 had nothing to do with her mother’s turpitude and the deceased had the option of ending his relationship with the accused without venting his frustrations on an innocent child.
24. The witness Pw2 would have been sexually assaulted were it not for the timely intervention by the accused.
25. The accused may have acted disproportionately in the circumstances but one cannot ignore the fact that it was the deceased who had the knife that ended his life.
26. The goals of sentencing include rehabilitation, denunciation and deterrence. The court bears in mind that in sentencing proportionality is key taking into account the circumstances of the case and the mitigation of the accused.
27. The accused gave the deceased one fatal stab thus the reduction of the offence from murder to Manslaughter and the offense was committed in what were circumstances of extreme and sudden provocation.
28. In the case EI S/O KABAYA VS REPUBLIC [1961] EA the court held:
“In consideration whether the defence of provocation was sufficient to reduce the offence to manslaughter it is material to consider the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used.”
29. The court considered the degree of retaliation in view of the circumstances of the case and noted that the accused administered a single blow. The number of blows is an important consideration in determining the aggravated nature of the Manslaughter.
30. In the case of Mancini v Director of Public prosecutions 1964 CR A page, it was held by the House of Lords that to reduce an offence of murder to manslaughter it is necessary to take into account the instrument with which the homicide was effected. “in applying the test it is of particular importance……to take into account the instrument with which the homicide was effected, for to retort, on the heat of passion induced by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”
31. The nature of the weapon is also an important consideration and in this case the deceased provided the weapon that ended his life.
32. In all circumstances the action of the accused was not such that it would attract a heavy penalty.
33. The probation department has proposed a non -custodial sentence whereas the prosecution has called for a stiff penalty of upto 15 years imprisonment.
34. This court has considered all the facts and the mitigation offered by the accused as well as the conduct of the deceased leading to the confrontation that culminated in his death. The community attitude towards the offender is very positive and given the circumstances under which the offence was committed, to sent to prison custody for a period of 15 years as proposed by the prosecution would be unjust in the circumstances.
35. The deceased courted his own death through his incestuous conduct which must have provoked the accused beyond control. The court is alive to the ever-rising cases of sexual violence against women in this country and men must be careful in the manner they seek to quench their sexual thirst. It is important to mention that children must not be touched at all. It is the duty of the adult members of the family to protect children against sexual harassment and or violation. The accused must have been incensed by the deceased’s threat to their daughter and that led her into committing the offence.
36. The court does not by any means whatsoever intend to justify the accused person’s action but each case must be determined on the basis of its own facts.
37. It is the considered view of this court that a custodial sentence of 4 years imprisonment less the cumulative period spent in custody would be a proportionate sentence.
38. The accused shall therefore serve 4 years imprisonment less the cumulative period spent in custody before sentencing. The prison authorities in computing the sentence shall take into account the period the accused person spent in custody before release on bail and the period spent after bail was cancelled.
39. The accused has a right of appeal against sentence within 14 days.
40. It is so ordered.