SENTENCE
1. Silas Kamongwe was charged with murder Contrary to Section 203 as read with Section 204 of the Penal Code.
2. It was alleged that on 2/10/2018 at Boma Village Iuani Location, within Makueni County he murdered Cosmas Mutua Kivili.
3. The accused person took plea on 21/1/2018 and pleaded not guilty.
4. The prosecution called 13 witnesses to prove their case ; PW1, 2 , 3, & 5 - father , mother , sister in law and sister of the deceased respectively; PW4 and 11 the persons who took the deceased to hospital at various times; PW6 and 12 who were drinking Kaluvu (traditional Akamba beer) with the deceased and the accused, PW8, 9 and 13 the police officer s including the investigating officer and PW7 and 10 the nursing officer who treated him at some point and medical officer who conducted the postmortem respectively.
5. After the full trial I found that there was sufficient evidence that the accused person caused the death of the deceased but without malice aforethought.
6. I found that the charge of murder was unsustainable and found the accused person guilty of the offence of manslaughter contrary to Section 202 as read with 206 of the Penal Code and convicted him accordingly
7. I sought a pre-sentence report from PACs.
8. According to the report the offender’s family was ready and willing to accept the offender back home. The mother was of the view that the offender had acted out of anger for lack of proper guidance at the material time.
9. The deceased was the only son in a family of 6 siblings. His mother was still bitter at the time she was interviewed for the report. She did not want any reconciliation or restitution but wanted a non-custodial sentence for the accused person. She expressed fears that the accused was a danger to her family.
10. It is noteworthy that the mother of the deceased comes from the same clan as the family of the accused, and that they two families were neighbours.
11. The assistant chief confirmed these facts but added that the two families shared the funeral costs, and that the family of the offender gave out a cow to the family of the deceased as a gesture of taking responsibility and a form of compensation.
12. The issue for determination is what is the appropriate sentence in the circumstances.
13. I have to keep in mind that the death of the deceased was the outcome of an assault where the treatment of the injuries sustained did not go well.
14. I seek guidance from the sentencing guidelines. It is fact that the offender has been in custody since 22nd November 2018 a period of 6 years. Pursuant to s. 333(2) of the Criminal Procedure Code that is a period long enough as a custodial sentence for the offence he committed.
15. I would therefor consider a non-custodial sentence of three years’ probation supervision to enable a reconciliation and restoration of the family relations.
16. I appreciate that the family of the deceased may not have received any psycho -social support upon the demise of their son… Probation Order will include psychosocial support for the secondary victims to be provided through the PACs Makueni.
17. In conclusion the offender is sentenced to the 6 years’ imprisonment already served in remand. He is to be released on Probation supervision for 3 years.
18. PACs to ensure that the victim’s family also is provided with psycho =social support, and to assist the families to come to a restoration of relations.
19. Orders Accordingly
Dated, signed and delivered virtually this 7th March 2025
Mumbua T Matheka
Judge
Ms. Nelima Court Assistant
Accused
Mr. Hassan for accused
For State Mr. Kazungu