SENTENCE RULING
1. On 27/7/2020 the accused James Mutua Kimondiu was charged with murder Contrary to Section 203 as read with section 204 of the Penal Code. The particulars were that on 7/5/2020 at Kima Village Kwale Location, Mukaa Sub County within Makueni County he unlawfully murdered Onesmus Mutuku Wambua.
2. He pleaded not guilty.
3. On 8/5/2025 the prosecution and the defence entered into a plea bargaining agreement pursuant to section 137A.(1) (a) of the Criminal Procedure Code which 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)...
4. The accused person pleaded guilty to manslaughter contrary to section 202 as read with section 205 of the Penal Code; The Particulars were that James Mutua Kimondiu on the of 7th day of May, 2020 at Kima Village, Kwale Location in Mukaa sub-county within Makueni County caused the unlawful death of Onesmus Mutuku Wambua.
5. The facts as read by the Prosecutor were that on the 3/5/2020, around 2130hrs at Kima Village, Kwale Location, Makueni County the accused went to his in-law’s homestead to pick his wife to proceed home with her. When he went there he was drunk and upon arrival, he disagreed with the wife Nicole Mwende. She entered her brother’s house Onesmus Mutuku the deceased. When she entered – accused entered the house – Onesmus became angry with the accused and they fought.
6. After some time one Kamau who is the brother to the deceased heard
some noise and came from his house which is situated within the same compound. He persuaded the accused person to go home and return in the morning in order to solve the dispute amicably.
The accused heeded advice and he was escorted by Kamau towards his home at Nzeveni Village.The deceased (Onesmus Mutuku) being angry because of the damaged door, took a stick belonging to Koisaini Koleino and tried to follow the accused (James Mutua Kimondiu) The accused person who had gone away came back and passed one Kamau near the homestead; he struggled with one Onesmus Mutuku and overpowered him. He took away the stick from him and hit him on the head inflicting him a deep cut on his head. He was rescued by on Kamau and Koisaini who offered him first aid and later took him to his house and laid him on the bed. He was unconscious. One Koisaini spent the night at the deceased’s house and left in the morning to his house.
7. The brother of Onesmus by name Kamau arrived. He called an ambulance and took Onesmus – to hospital in company of Koleino i.e Sultan Hamud Subcounty Hospital. A Report was made at Kiou Police of the assault/fight. Onesmus was referred to Machakos County Hospital – a head scan was done – he was referred Makueni Referral hospital and then he was referred to Kenyatta National Hospital where he died on 7/5/2020.
8. The murder weapon – a stick was recovered the accused was charged with murder..
9. A post mortem report was conducted at Kenyatta National Hospital – and the findings were that cause of death was head injury due to blunt trauma. The postmortem PEX1 dated 14/5/2020
10. The accused pleaded guilty to the facts and was convicted on his own plea of guilt.
11. In mitigation Mr. Mathuva for accused stated that the Accused was remorseful, very remorseful because it involved his in laws- he is 35 years old – he has never committed previous offence - He is full life is before him- because of this regrettable incident, his wife left, they had one child, who was left with accused – He has been taking care of that child while on bond.
The child is with his parents. He has sought forgiveness from his in laws. He pleads for leniency – and to find him suitable for non-custodial sentence. He is not a threat to society, he is an upstanding member of the community. Court was urged to perused the Pre-sentence report guidance.
12. I ordered for Pre-Sentence Report.
13. The Probation &Aftercare Service Officer reported as follows;
The offender’s parents (Jackson Kimundiu and Josephine Kimundiu) revealed that the offender and the deceased were brother in laws since the offender’s wife is biological brother to the deceased. According to offender’s father (Jackson Kimundiu) the two families met through clan elders from both the offender’s side and the victim’s side thus nine elders from Ambua Clan and six from Asii clan as per the minutes dated on 3rd May 2020. During the clan meeting the elders performed cultural activities and reconciliation happened. Nzeveni and Itumbule Local Administration officers confirmed that a meeting happened.
The offender’s parents (Jackson Kimundiu and Josephine Kimundiu) and sister (Hellene Kimundiu) expressed willingness to be involved in the offender’s rehabilitation incase the Honorable Court places him on a non-custodial sentence. The offender’s mother Josephine Kimundiu and offender’s sister (Hellene Kimundiu) noted that the offender has a familial responsibility for his daughter and he has been doing it to perfection, he always ensures that the school fee is paid on time and attends school meetings. The offender’s wife separated with the offender and she is currently remarried. The Nzeveni and Itumbule Local Administration feels that the offender is a good candidate for a non-custodial sentence since the two clans reconciled .
Furter
The victim’s parents (Wambua Mukoma and Angeline Wambua) stated that the incidence was not intentional and they had a clan meeting and the elders met with them and they agreed on reconciliation which was successfully done, additionally the elders agreed on compensation of Ksh 128,525 for the deceased parents which they had spent on treatment of the deceased at Kenyatta National Hospital, however they have never received the amount as per the agreement. They are not opposed to the offender being released on a non-custodial sentence.
The Officer Recommended the following as intervention measures:
In case the offender is placed on a non-custodial sentence, he will be closely monitored through regular reporting and acquire guidance and counseling on negative peers, peer pressure and drugs and substance abuse. He will also be linked to job opportunities for him to continue supporting his family and his daughter who depends on him as a breadwinner. Our office and the Ngaamba Local Administration will collaborate on monitoring and supervision and conduct quarterly case conferencing with the family members on review of supervision progress.
14. I have perused the minutes of the clan meeting. It is clear that the two families were alive to the fact that the killing was not intentional and they agreed to share equally, the costs incurred by the family after the deceased sustained the injuries, including the cost of treatment. No other compensation was sought.
15. This is provided for under s. 137A (2) which states;
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.
16. The accused person offender has taken responsibility for his actions, he is remorseful. The community and the the family were involved a clear indication of restoration of relations and expected peaceful co-existence upon release.
17. The Probation Aftercare Service Officer recommends
That the offender be considered for Probation Orders for a period of Three Years for appropriate supervision, monitoring and Rehabilitation. However, this subject to courts discretion.
18. The agreement between the Ambua Clan and Asii Clan for the 2 families to share the costs that ensued from the death total Kshs. 257,050 for each family to bear the cost of Kshs. 128,525.
19. Evidently there is restoration of relations – as it is clear that forgiveness was sought and the families sat and discussed.
20. The accused person has spent time in custody – as he was released on 3/2/2021 on bond. Thereafter, his bond has revoked on 13/3/2025 when the surety withdrew his security. I have taken into consideration the period. I consider the time spent in custody as part of the sentence , a period served.
21. For the rest of the sentence, I find the accused suitable for non-custodial sentence . I have explained the following order to the accused and he is willing to abide. I order that :-
1) He is placed on Probation supervision for 3 years.
2) That shall ensure that the sum agreed at Kshs 128,525 is paid to the parents of the deceased as his contribution to the costs incurred consequent to his action.
3) He shall abide by the interventions set out by the PACs.
4) He will avoid intoxication.
5) He shall abide by probation order.
In default the Probation Officer shall inform the court for necessary action on breach of the Probation Order.
Orders accordingly.
Dated, signed and delivered this 16th July 2025
Mumbua T Matheka
Judge
CA Chrispol
Accused present
Mr. Mathuva for accused
Mr. Kazungu for state
1. On 27/7/2020 the accused James Mutua Kimondiu was charged with murder Contrary to Section 203 as read with section 204 of the Penal Code. The particulars were that on 7/5/2020 at Kima Village Kwale Location, Mukaa Sub County within Makueni County he unlawfully murdered Onesmus Mutuku Wambua.
2. He pleaded not guilty.
3. On 8/5/2025 the prosecution and the defence entered into a plea bargaining agreement pursuant to section 137A.(1) (a) of the Criminal Procedure Code which 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)...
4. The accused person pleaded guilty to manslaughter contrary to section 202 as read with section 205 of the Penal Code; The Particulars were that James Mutua Kimondiu on the of 7th day of May, 2020 at Kima Village, Kwale Location in Mukaa sub-county within Makueni County caused the unlawful death of Onesmus Mutuku Wambua.
5. The facts as read by the Prosecutor were that on the 3/5/2020, around 2130hrs at Kima Village, Kwale Location, Makueni County the accused went to his in-law’s homestead to pick his wife to proceed home with her. When he went there he was drunk and upon arrival, he disagreed with the wife Nicole Mwende. She entered her brother’s house Onesmus Mutuku the deceased. When she entered – accused entered the house – Onesmus became angry with the accused and they fought.
6. After some time one Kamau who is the brother to the deceased heard
some noise and came from his house which is situated within the same compound. He persuaded the accused person to go home and return in the morning in order to solve the dispute amicably.
The accused heeded advice and he was escorted by Kamau towards his home at Nzeveni Village.The deceased (Onesmus Mutuku) being angry because of the damaged door, took a stick belonging to Koisaini Koleino and tried to follow the accused (James Mutua Kimondiu) The accused person who had gone away came back and passed one Kamau near the homestead; he struggled with one Onesmus Mutuku and overpowered him. He took away the stick from him and hit him on the head inflicting him a deep cut on his head. He was rescued by on Kamau and Koisaini who offered him first aid and later took him to his house and laid him on the bed. He was unconscious. One Koisaini spent the night at the deceased’s house and left in the morning to his house.
7. The brother of Onesmus by name Kamau arrived. He called an ambulance and took Onesmus – to hospital in company of Koleino i.e Sultan Hamud Subcounty Hospital. A Report was made at Kiou Police of the assault/fight. Onesmus was referred to Machakos County Hospital – a head scan was done – he was referred Makueni Referral hospital and then he was referred to Kenyatta National Hospital where he died on 7/5/2020.
8. The murder weapon – a stick was recovered the accused was charged with murder..
9. A post mortem report was conducted at Kenyatta National Hospital – and the findings were that cause of death was head injury due to blunt trauma. The postmortem PEX1 dated 14/5/2020
10. The accused pleaded guilty to the facts and was convicted on his own plea of guilt.
11. In mitigation Mr. Mathuva for accused stated that the Accused was remorseful, very remorseful because it involved his in laws- he is 35 years old – he has never committed previous offence - He is full life is before him- because of this regrettable incident, his wife left, they had one child, who was left with accused – He has been taking care of that child while on bond.
The child is with his parents. He has sought forgiveness from his in laws. He pleads for leniency – and to find him suitable for non-custodial sentence. He is not a threat to society, he is an upstanding member of the community. Court was urged to perused the Pre-sentence report guidance.
12. I ordered for Pre-Sentence Report.
13. The Probation &Aftercare Service Officer reported as follows;
The offender’s parents (Jackson Kimundiu and Josephine Kimundiu) revealed that the offender and the deceased were brother in laws since the offender’s wife is biological brother to the deceased. According to offender’s father (Jackson Kimundiu) the two families met through clan elders from both the offender’s side and the victim’s side thus nine elders from Ambua Clan and six from Asii clan as per the minutes dated on 3rd May 2020. During the clan meeting the elders performed cultural activities and reconciliation happened. Nzeveni and Itumbule Local Administration officers confirmed that a meeting happened.
The offender’s parents (Jackson Kimundiu and Josephine Kimundiu) and sister (Hellene Kimundiu) expressed willingness to be involved in the offender’s rehabilitation incase the Honorable Court places him on a non-custodial sentence. The offender’s mother Josephine Kimundiu and offender’s sister (Hellene Kimundiu) noted that the offender has a familial responsibility for his daughter and he has been doing it to perfection, he always ensures that the school fee is paid on time and attends school meetings. The offender’s wife separated with the offender and she is currently remarried. The Nzeveni and Itumbule Local Administration feels that the offender is a good candidate for a non-custodial sentence since the two clans reconciled .
Furter
The victim’s parents (Wambua Mukoma and Angeline Wambua) stated that the incidence was not intentional and they had a clan meeting and the elders met with them and they agreed on reconciliation which was successfully done, additionally the elders agreed on compensation of Ksh 128,525 for the deceased parents which they had spent on treatment of the deceased at Kenyatta National Hospital, however they have never received the amount as per the agreement. They are not opposed to the offender being released on a non-custodial sentence.
The Officer Recommended the following as intervention measures:
In case the offender is placed on a non-custodial sentence, he will be closely monitored through regular reporting and acquire guidance and counseling on negative peers, peer pressure and drugs and substance abuse. He will also be linked to job opportunities for him to continue supporting his family and his daughter who depends on him as a breadwinner. Our office and the Ngaamba Local Administration will collaborate on monitoring and supervision and conduct quarterly case conferencing with the family members on review of supervision progress.
14. I have perused the minutes of the clan meeting. It is clear that the two families were alive to the fact that the killing was not intentional and they agreed to share equally, the costs incurred by the family after the deceased sustained the injuries, including the cost of treatment. No other compensation was sought.
15. This is provided for under s. 137A (2) which states;
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.
16. The accused person offender has taken responsibility for his actions, he is remorseful. The community and the the family were involved a clear indication of restoration of relations and expected peaceful co-existence upon release.
17. The Probation Aftercare Service Officer recommends
That the offender be considered for Probation Orders for a period of Three Years for appropriate supervision, monitoring and Rehabilitation. However, this subject to courts discretion.
18. The agreement between the Ambua Clan and Asii Clan for the 2 families to share the costs that ensued from the death total Kshs. 257,050 for each family to bear the cost of Kshs. 128,525.
19. Evidently there is restoration of relations – as it is clear that forgiveness was sought and the families sat and discussed.
20. The accused person has spent time in custody – as he was released on 3/2/2021 on bond. Thereafter, his bond has revoked on 13/3/2025 when the surety withdrew his security. I have taken into consideration the period. I consider the time spent in custody as part of the sentence , a period served.
21. For the rest of the sentence, I find the accused suitable for non-custodial sentence . I have explained the following order to the accused and he is willing to abide. I order that :-
1) He is placed on Probation supervision for 3 years.
2) That shall ensure that the sum agreed at Kshs 128,525 is paid to the parents of the deceased as his contribution to the costs incurred consequent to his action.
3) He shall abide by the interventions set out by the PACs.
4) He will avoid intoxication.
5) He shall abide by probation order.
In default the Probation Officer shall inform the court for necessary action on breach of the Probation Order.
Orders accordingly.
Dated, signed and delivered this 16th July 2025
Mumbua T Matheka
Judge
CA Chrispol
Accused present
Mr. Mathuva for accused
Mr. Kazungu for state