1. The accused person was charged with the offence of Murder under section 203 as read with 204 of the Penal Code.
2. The accused person entered into a plea agreement with the state in accordance with the provisions of section 137A-O of the Criminal Procedure Code and had the charge reduced from murder to Manslaughter contrary to Section 202 as read with 205 of the Penal Code.
3. The plea agreement was filed in court on 21 st July 2025 and this court subsequently adopted the same as part of the record.
4. The manslaughter information was read over to the accused and he pleaded guilty by stating that “it is true I killed the deceased unintentionally.”
5. This court accordingly entered a plea of guilty against the accused.
6. The fact as set out in the plea agreement read as follows: -
7. The accused person JOSEPHAT KIMATHI MUTEMI and the deceased ERICK KIMUNYA alias KIM were long time friends who had schooled together and lived in the same neighborhood within Umoja 3.
8. The accused person lived in his mother's plot in one room together with two friends Antony Mwendwa Mutuku and Brian Mutuku Mutua whom he was housing before they got their own place, as they awaited to get an attachment opportunity as mechanics.
9. On 1st April,2023 in the evening the deceased went to the accused house to visit him and bid him goodbye since he was leaving for Qatar for a job opportunity the following day in the evening.
10. He found the accused with 2 of his other friends Antony Mwendwa Mutuku and Brian Mutuku Mutua. After a short time, they left together leaving behind the two friends Antony Mwendwa Mutuku and Brian Mutuku Mutua.
11. At around 10:00pm the deceased and the accused come back to the accused room while drunk and the two were smoking bhang. They found the other two friends and together they all talked and listened to music till 12 midnight when the deceased requested to leave to his home where he lived with his mother Sarah Njeri Miringa and father John kibandi Kimunya.
12. The accused escorted the deceased outside so that he could lock up the gate. When the accused returned, they continued listening to music till 3:00am when they fell asleep without locking the door.
13. The following day on 2nd April,2023 at 7:00 am the deceased come back to the accused house and found one of the accused mother's employees known as Kelvin Mwangangi in the compound who asked him why he was visiting people that early and they had not even woken up. Nonetheless he allowed him in to go the accused person’s room.
14. The deceased got into the room and found the three still asleep. The deceased decided to sit on the table and no sooner had he sat down than Antony Mwendwa Mutuku woke up and saw him.
15. Antony went to the table to check his phone and realized it was not on the table. He asked the deceased whether he had seen a phone on top of the table, but before he could answer the accused and Brian Mutuku Mutua who had also woken up, noted that their phones too were missing from the room.
16. The accused alleges after looking for the phones in the room and not finding them, he asked the deceased where the phones were. The deceased did not answer instead he went to the cabinet in the room and took a knife in an attempt to stab the accused. Antony Mwendwa Mutuku managed to disarm him.
17. Out of anger, the accused all of a sudden started attacking the deceased, he first slapped him then punched him with a fist on his head, face and pushed him hitting him against the wall.
18. The deceased started bleeding from the nose. The deceased tried to wash his face in a basin that had water inside the room to try and clean up the blood that was oozing from his nose.
19. Brian Mutuku Mutua asked the deceased if he was the one who had taken their phones. The deceased replied "ask Kimathi", the accused got angrier and held the deceased by his neck and pushed him and hitting his head against the wall until the deceased lost consciousness.
20. This prompted Antony Mwendwa Mutuku and Brian Mutuku Mutua to rush outside calling for help. They found Kelvin Mwangangi an employee of the family of the deceased who came and tried to talk to the accused but he told him that he should not interfere with his issues.
21. The accused then locked the deceased inside the room and went near the gate.
22. Within few minutes Peter Gichohi the deceased’s uncle came there looking for the deceased as he had been told by the deceased’s mother that the deceased was at the accused person’s place.
23. When he asked the accused whether he had seen the deceased he said he had not seen him instead he should look for him in place known as Mungetho.
24. Peter Gichohi left worried since he was supposed to help him prepare for his travel to Qatar that evening.
25. Antony Mwendwa Mutuku and Brian Mutuku Mutua decided to follow him to inform him that the deceased was locked up in Erick’s room. Before they got to him, the accused came and went to the deceased house and informed Peter Gichohi and the deceased mother that the deceased had been beaten for stealing some phones.
26. They immediately demanded to know where the deceased was. The accused person took them to his room and opened the door. When the deceased mother saw the deceased, she screamed on how badly he was beaten. She raised an alarmed which prompted the accused to run away and other neighbors came to find out what was happening.
27. The members of the public tried chasing after the accused person but they could not get hold of him.
28. The deceased mother together with Peter Gichohi went to make report at the Kwa Maji Police Post vide OB NO 18/0/04/2024 and they were advised to rush the deceased to hospital. They then went to Mama Lucy Kibaki Hospital.
29. The deceased parents and Peter Gichohi were then advised at Mama Lucy Hospital to take the deceased for a CT scan which they took him to East Hospital in Eastleigh and then passed by their house to pick some food for him and later went back to Mama Lucy Hospital.
30. At around 12 midnight while waiting to be seen by the doctors, the deceased collapsed and passed on.
31. The following day a report was made by the deceased’s uncle vide OB NO
14/03/04/2024 at DCI Dandora Police Station.
32. On 6th April,2024 an autopsy was conducted by the pathologist and it was established that the deceased cause of death was head injury due to blunt force trauma.
33. PC Colllins Shavaste received a tip from members of the public that the accused was hiding in Makueni County at Brian Mutuku Mutua grandparents' home.
34. On 4th April,2023 they were both arrested and brought back to Nairobi at Dandora DCI.
35. On 5th April 2023 the investigating officer commenced investigation and made an application vide Miscellaneous Application no. E337/2023 at Makarada law Courts seeking days to hold the accused as he completed his investigations. After being granted 21 days, he recorded statements of witnesses and forwarded the file to the office of ODPP for charges of the offence of murder to be preferred.
36. CPL Judith Muthoni forwarded the nail samples from the deceased and the accused blanket and the green basin which the deceased had used to wash his face during the altercation to the government chemist vide exhibit memo dated 27th April 2023.
37. Mental assessment was conducted on the accused person on 23rd May 2023 and he was found fit to plead.
27. The accused person knowingly, voluntarily, and truthfully admitted the facts when they were read out to him.
The accused was convicted for the offense of Manslaughter under section 202 as read with 205 of the Penal Code.
38. The accused person’s counsel indicated to the court that the deceased’s mother had sworn an affidavit in respect of this matter and pleaded to have it placed on record for consideration by the court before sentencing.
39. The court on its part called for a presentence report for consideration before sentencing.
40. The affidavit sworn by Sarah Njeri Miringa on 11 th December 2023 was adopted by the deponent as a victim impact statement on the 17 th September 2025.
41. The court has considered the affidavit by the deceased’s mother who deposes that the family of the deceased and that of the accused met and reconciled.
42. In the affidavit at paragraph 4 the deceased mother urged the court to allow the prosecution to terminate the proceedings against the accused unconditionally.
43. According to the deceased mother she had forgiven the accused and reconciled with the family.
44. The state however did not move to terminate the proceedings but notably the prosecution counsel did not object to the affidavit being placed on record.
45. The accused person in mitigation informed the court that he was remorseful.
46. He also stated that he has (2) two children one aged 9 years and another 5 years.
47. Counsel for the accused urged the court to consider that by pleading guilty the accused had saved to the court valuable judicial time.
48. The accused was said to be 31 years old and the court was further told that he has since reformed and was ready to rejoin the rest of the society.
49. The accused was said to have spent a period of two years in custody since his arrest.
50. Further, it was submitted that the accused was a first offender and as such the court should consider imposing a non- custodial sentence.
51. The probation officer Ms. Esther Mwalili filed a pre- sentence report dated 12 th September 2025.
52. The probation officer recommended a non- custodial sentence in the nature of probation.
53. The court has considered the facts of the case as well as all the mitigating factors brought out in this case.
54. It is important for the court to state that the offence of manslaughter attracts maximum sentence of life imprisonment.
55. Life imprisonment would ordinarily be imposed in the most aggravated cases of manslaughter.
56. The court however retains the discretion in sentencing to impose any other form of sentence including a suspended sentence.
57. The court could also consider unconditional discharge under Section 35 of the Penal Code.
58. However, each case is to be determined on its own facts. See Rep. Vs. Etiang (Criminal Case E008 of 2020 [2024] KEHC 4827 (KLR) (9 TH MAY 2024) (Ruling) and June alias Mercy Vs. Republic (Criminal Appeal 166 of 2020) [2025] KECA 1439 (KLR) (31 st July 2025) (Judgment).
59. The sentencing court must however exercise its discretion in sentencing judiciously.
60. The accused person though a first offender, is said to be a person who was given to smoking bhang and taking alcohol before his arrest.
61. The probation officer noted that there is need for intervention through counseling to try and win him over from drug and substance abuse.
62. The accused assaulted the deceased inflicting upon him serious injuries that led to the death of the deceased.
63. The accused in my view is a person who requires to be reminded that human life is precious and no one should ever take the law into his own hands no matter the circumstances. The accused had the option of arresting the deceased if he believed that he had indeed stolen and hand him over to law enforcement authorities. In this case he arrogated himself the roles of investigator, judge and executioner. The assault on the deceased appears to have been vicious.
64. The accused is barely 31 years of age thus he still is in his youth and needs to be reformed and rehabilitated to be a responsible citizen.
65. The youth of this country need to be reminded that drug and substance abuse is not fashionable and can easily lead one to self -destruction.
66. The accused may have been forgiven by the deceased’s mother but he should know that manslaughter is a serious offense that should be punished by imposing a deterrent sentence.
67. The accused in my view is not suitable for a non -custodial sentence. The manner in which the deceased met his death calls for some measure of deterrence and denunciation. The court acknowledges that the deceased’s family had forgiven the accused but the state decided to pursue the matter. The state has a duty to ensure that crime is punished for the sake of order, peace and harmony in society.
68. Accordingly, doing the best I can in the circumstances of this case, this court hereby sentences the accused person to a prions term of FIVE (5) years to be computed from the date of his arrest that being 4 th April 2023.
69. The accused has a right of appeal against the sentence within 14 days from today.
70. It is so ordered.
2. The accused person entered into a plea agreement with the state in accordance with the provisions of section 137A-O of the Criminal Procedure Code and had the charge reduced from murder to Manslaughter contrary to Section 202 as read with 205 of the Penal Code.
3. The plea agreement was filed in court on 21 st July 2025 and this court subsequently adopted the same as part of the record.
4. The manslaughter information was read over to the accused and he pleaded guilty by stating that “it is true I killed the deceased unintentionally.”
5. This court accordingly entered a plea of guilty against the accused.
6. The fact as set out in the plea agreement read as follows: -
7. The accused person JOSEPHAT KIMATHI MUTEMI and the deceased ERICK KIMUNYA alias KIM were long time friends who had schooled together and lived in the same neighborhood within Umoja 3.
8. The accused person lived in his mother's plot in one room together with two friends Antony Mwendwa Mutuku and Brian Mutuku Mutua whom he was housing before they got their own place, as they awaited to get an attachment opportunity as mechanics.
9. On 1st April,2023 in the evening the deceased went to the accused house to visit him and bid him goodbye since he was leaving for Qatar for a job opportunity the following day in the evening.
10. He found the accused with 2 of his other friends Antony Mwendwa Mutuku and Brian Mutuku Mutua. After a short time, they left together leaving behind the two friends Antony Mwendwa Mutuku and Brian Mutuku Mutua.
11. At around 10:00pm the deceased and the accused come back to the accused room while drunk and the two were smoking bhang. They found the other two friends and together they all talked and listened to music till 12 midnight when the deceased requested to leave to his home where he lived with his mother Sarah Njeri Miringa and father John kibandi Kimunya.
12. The accused escorted the deceased outside so that he could lock up the gate. When the accused returned, they continued listening to music till 3:00am when they fell asleep without locking the door.
13. The following day on 2nd April,2023 at 7:00 am the deceased come back to the accused house and found one of the accused mother's employees known as Kelvin Mwangangi in the compound who asked him why he was visiting people that early and they had not even woken up. Nonetheless he allowed him in to go the accused person’s room.
14. The deceased got into the room and found the three still asleep. The deceased decided to sit on the table and no sooner had he sat down than Antony Mwendwa Mutuku woke up and saw him.
15. Antony went to the table to check his phone and realized it was not on the table. He asked the deceased whether he had seen a phone on top of the table, but before he could answer the accused and Brian Mutuku Mutua who had also woken up, noted that their phones too were missing from the room.
16. The accused alleges after looking for the phones in the room and not finding them, he asked the deceased where the phones were. The deceased did not answer instead he went to the cabinet in the room and took a knife in an attempt to stab the accused. Antony Mwendwa Mutuku managed to disarm him.
17. Out of anger, the accused all of a sudden started attacking the deceased, he first slapped him then punched him with a fist on his head, face and pushed him hitting him against the wall.
18. The deceased started bleeding from the nose. The deceased tried to wash his face in a basin that had water inside the room to try and clean up the blood that was oozing from his nose.
19. Brian Mutuku Mutua asked the deceased if he was the one who had taken their phones. The deceased replied "ask Kimathi", the accused got angrier and held the deceased by his neck and pushed him and hitting his head against the wall until the deceased lost consciousness.
20. This prompted Antony Mwendwa Mutuku and Brian Mutuku Mutua to rush outside calling for help. They found Kelvin Mwangangi an employee of the family of the deceased who came and tried to talk to the accused but he told him that he should not interfere with his issues.
21. The accused then locked the deceased inside the room and went near the gate.
22. Within few minutes Peter Gichohi the deceased’s uncle came there looking for the deceased as he had been told by the deceased’s mother that the deceased was at the accused person’s place.
23. When he asked the accused whether he had seen the deceased he said he had not seen him instead he should look for him in place known as Mungetho.
24. Peter Gichohi left worried since he was supposed to help him prepare for his travel to Qatar that evening.
25. Antony Mwendwa Mutuku and Brian Mutuku Mutua decided to follow him to inform him that the deceased was locked up in Erick’s room. Before they got to him, the accused came and went to the deceased house and informed Peter Gichohi and the deceased mother that the deceased had been beaten for stealing some phones.
26. They immediately demanded to know where the deceased was. The accused person took them to his room and opened the door. When the deceased mother saw the deceased, she screamed on how badly he was beaten. She raised an alarmed which prompted the accused to run away and other neighbors came to find out what was happening.
27. The members of the public tried chasing after the accused person but they could not get hold of him.
28. The deceased mother together with Peter Gichohi went to make report at the Kwa Maji Police Post vide OB NO 18/0/04/2024 and they were advised to rush the deceased to hospital. They then went to Mama Lucy Kibaki Hospital.
29. The deceased parents and Peter Gichohi were then advised at Mama Lucy Hospital to take the deceased for a CT scan which they took him to East Hospital in Eastleigh and then passed by their house to pick some food for him and later went back to Mama Lucy Hospital.
30. At around 12 midnight while waiting to be seen by the doctors, the deceased collapsed and passed on.
31. The following day a report was made by the deceased’s uncle vide OB NO
14/03/04/2024 at DCI Dandora Police Station.
32. On 6th April,2024 an autopsy was conducted by the pathologist and it was established that the deceased cause of death was head injury due to blunt force trauma.
33. PC Colllins Shavaste received a tip from members of the public that the accused was hiding in Makueni County at Brian Mutuku Mutua grandparents' home.
34. On 4th April,2023 they were both arrested and brought back to Nairobi at Dandora DCI.
35. On 5th April 2023 the investigating officer commenced investigation and made an application vide Miscellaneous Application no. E337/2023 at Makarada law Courts seeking days to hold the accused as he completed his investigations. After being granted 21 days, he recorded statements of witnesses and forwarded the file to the office of ODPP for charges of the offence of murder to be preferred.
36. CPL Judith Muthoni forwarded the nail samples from the deceased and the accused blanket and the green basin which the deceased had used to wash his face during the altercation to the government chemist vide exhibit memo dated 27th April 2023.
37. Mental assessment was conducted on the accused person on 23rd May 2023 and he was found fit to plead.
27. The accused person knowingly, voluntarily, and truthfully admitted the facts when they were read out to him.
The accused was convicted for the offense of Manslaughter under section 202 as read with 205 of the Penal Code.
38. The accused person’s counsel indicated to the court that the deceased’s mother had sworn an affidavit in respect of this matter and pleaded to have it placed on record for consideration by the court before sentencing.
39. The court on its part called for a presentence report for consideration before sentencing.
40. The affidavit sworn by Sarah Njeri Miringa on 11 th December 2023 was adopted by the deponent as a victim impact statement on the 17 th September 2025.
41. The court has considered the affidavit by the deceased’s mother who deposes that the family of the deceased and that of the accused met and reconciled.
42. In the affidavit at paragraph 4 the deceased mother urged the court to allow the prosecution to terminate the proceedings against the accused unconditionally.
43. According to the deceased mother she had forgiven the accused and reconciled with the family.
44. The state however did not move to terminate the proceedings but notably the prosecution counsel did not object to the affidavit being placed on record.
45. The accused person in mitigation informed the court that he was remorseful.
46. He also stated that he has (2) two children one aged 9 years and another 5 years.
47. Counsel for the accused urged the court to consider that by pleading guilty the accused had saved to the court valuable judicial time.
48. The accused was said to be 31 years old and the court was further told that he has since reformed and was ready to rejoin the rest of the society.
49. The accused was said to have spent a period of two years in custody since his arrest.
50. Further, it was submitted that the accused was a first offender and as such the court should consider imposing a non- custodial sentence.
51. The probation officer Ms. Esther Mwalili filed a pre- sentence report dated 12 th September 2025.
52. The probation officer recommended a non- custodial sentence in the nature of probation.
53. The court has considered the facts of the case as well as all the mitigating factors brought out in this case.
54. It is important for the court to state that the offence of manslaughter attracts maximum sentence of life imprisonment.
55. Life imprisonment would ordinarily be imposed in the most aggravated cases of manslaughter.
56. The court however retains the discretion in sentencing to impose any other form of sentence including a suspended sentence.
57. The court could also consider unconditional discharge under Section 35 of the Penal Code.
58. However, each case is to be determined on its own facts. See Rep. Vs. Etiang (Criminal Case E008 of 2020 [2024] KEHC 4827 (KLR) (9 TH MAY 2024) (Ruling) and June alias Mercy Vs. Republic (Criminal Appeal 166 of 2020) [2025] KECA 1439 (KLR) (31 st July 2025) (Judgment).
59. The sentencing court must however exercise its discretion in sentencing judiciously.
60. The accused person though a first offender, is said to be a person who was given to smoking bhang and taking alcohol before his arrest.
61. The probation officer noted that there is need for intervention through counseling to try and win him over from drug and substance abuse.
62. The accused assaulted the deceased inflicting upon him serious injuries that led to the death of the deceased.
63. The accused in my view is a person who requires to be reminded that human life is precious and no one should ever take the law into his own hands no matter the circumstances. The accused had the option of arresting the deceased if he believed that he had indeed stolen and hand him over to law enforcement authorities. In this case he arrogated himself the roles of investigator, judge and executioner. The assault on the deceased appears to have been vicious.
64. The accused is barely 31 years of age thus he still is in his youth and needs to be reformed and rehabilitated to be a responsible citizen.
65. The youth of this country need to be reminded that drug and substance abuse is not fashionable and can easily lead one to self -destruction.
66. The accused may have been forgiven by the deceased’s mother but he should know that manslaughter is a serious offense that should be punished by imposing a deterrent sentence.
67. The accused in my view is not suitable for a non -custodial sentence. The manner in which the deceased met his death calls for some measure of deterrence and denunciation. The court acknowledges that the deceased’s family had forgiven the accused but the state decided to pursue the matter. The state has a duty to ensure that crime is punished for the sake of order, peace and harmony in society.
68. Accordingly, doing the best I can in the circumstances of this case, this court hereby sentences the accused person to a prions term of FIVE (5) years to be computed from the date of his arrest that being 4 th April 2023.
69. The accused has a right of appeal against the sentence within 14 days from today.
70. It is so ordered.