Kanjira v Republic [2023] KEHC 26600 (KLR)

Kanjira v Republic (Miscellaneous Criminal Application E179 of 2023) [2023] KEHC 26600 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26600 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E179 of 2023

A. Ong’injo, J

December 13, 2023

Between

Purity Kanjira

Applicant

and

Republic

Respondent

Ruling

1. The applicant Purity Kanjira was charged in Mombasa High Court Criminal Case No 10 of 2018 with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya.

2. The particulars of the offence were that Purity Kanjira on the 18th day of February 2018 at Mtwapa Township, within Kilifi County murdered Morris Koti Kiamba.

3. The trial court found that the prosecution had proved beyond reasonable doubt the case of manslaughter against the accused person for having unlawfully caused the death of the deceased. The applicant was convicted for the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

4. The applicant was then sentenced to 12 years imprisonment under the provisions of Section 333(2) of the Criminal Procedure Code and the sentence was effective from 6. 3.2018 when she was first arraigned in court.

5. The applicant filed mitigation grounds on 13. 10. 2023 that she is 30 years old and still in her prime years to support her child and father, that she is a first-time offender and has been a law abiding citizen all her life, and that she has reformed for the period spent in custody and she is remorseful for the offence committed. The applicant further stated that she is a single mother of one who is still in need of love and care from his mother and he has been alienated from his mother for a period of 5 years 6 months which has caused him a lot of mental torture, that prolonged stay in prison may lead to more problems as a result of lack of bonding with him, and that she still has 2 years and 5 months to serve. The applicant therefore prayed for a non-custodial sentence for the remaining period or any other form of order that the court may deem fit.

6. Guidelines on mitigating factors in resentencing were provided in the case of Francis Karioko Muruatetu & Another vs Republic (2017) eKLR as follows: -[71].As a consequence of this decision, paragraph 6. 4-6. 7 of the guidelines are no longer applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant.(72)We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process. This notwithstanding, we are obligated to point out here that paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines states that:“25. Guideline Judgments1Where there are guideline judgments, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bounded by it. It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defence counsel to inform the court of existing guideline judgments on an issue before it.”

7. This trial court considered all the factors that the applicant is now raising when sentencing her to 12 years imprisonment from 6. 3.2018. She should complete serving her sentence which is proportional to offence committed.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 13TH DAY OF DECEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentApplicant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE