Republic v CKK [2022] KEHC 9929 (KLR)

Republic v CKK (Criminal Revision E022 of 2022) [2022] KEHC 9929 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9929 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Revision E022 of 2022

TM Matheka, J

July 8, 2022

Between

Republic

Prosecution

and

CKK

Accused

Ruling

1. At the time he was charged with this offence CKK was 17 years old. It was alleged that on 6th May, 2021 at Kapkures Farm in Kuresoi North Sub-County within Nakuru County he murdered John Kipyegon Mitei, Contrary to Section 203 as read with Section 204 of Penal Code.

2. He pleaded not guilty to the offence. The matter was fixed for hearing.

3. On the 4th May 2022 the court was told that the subject had requested for plea agreement pursuant to Section 137A of the Criminal Procedure Code.

4. On the 8th June 2022 the parties were ready for the recoding of the plea agreement. Upon satisfying myself that the subject understand the nature of the Plea Agreement as is required by Section 137 F and 137 G of the Criminal Procedure Code, the Plea Agreement was recorded.

5. The accused pleaded guilty the lesser offence of Manslaughter Contrary to section 202 as read with section 205 of the Penal Code.

6. The facts of the case were that on 6th May 2021, there was a circumcision celebration at the home of Wilson Langat which the deceased and the accused attended. They drank alcohol while there and when the wife of the deceased passed by the accused referred to her as “huyu msichana mdogo” or this young girl. This annoyed the deceased and they began to quarrel with the accused. The accused took a pen- knife, stabbed the deceased and ran away and surrendered to the Mau Summit Police Station.

7. At the scene the deceased’s wife screamed and people came to the scene and took the deceased to Molo Sub County Hospital where he was pronounced dead on arrival.

8. The post mortem examination conducted on 8th May, 2021 revealed that the deceased died as a result of shock due to sharp blade trauma to chest penetrating to the heart. The post mortem report was produced as P Exhibit 1.

9. The subject pleaded guilty to the facts of the case. He was consequently found guilty on his own plea of guilt.

10. In mitigation, it was submitted on his behalf by his learned counsel, Ms. Ngugi, that he is deeply remorseful, responsible, obedient and polite. That while in remand he went back to school, sat his Kenya Certificate of Primary Education (KCPE) exam and scored 290 marks. She submitted that the subject wishes to advance his education and she asked a 5 years non-custodial sentence.

11. On his part the subject asked to address the court. He told the court that he was remorseful.’ Naomba msamaha. Sitawahi rudia kosa kama hio’ he said he wanted to go back to school and assist his parents.

12. The prosecution proposed a 10 years’ custodial sentence.

13. A Social Enquiry Report on the subject was prepared prior to disposition. According to the report his family has no criminal records. He schooled up to class 8, scored 190 marks and did not proceed with his education due to lack of interest. In the village the he is known as an obedient and polite young man.

14. On the circumstances of the offence, the report indicates that he and deceased had an altercation while in a circumcision graduation ceremony where illicit brews had been served over the volume of music. The deceased insulted him calling him uncircumcised and this fueled their differences which led to the commission of the offence herein.

15. The subject is remorseful and regrets his action and pleads for leniency. Both his and the family of the victim have initiated reconciliation which the local authority and the community are aware of and are not opposed to. It is recommended that he be placed under of probation supervision for a period of three (3) years.

16. Manslaughter is defined under Section 202(1) of the Penal Code defines the offence of manslaughter as “any person who by an unlawful act causes the death of another person is guilty of the felony termed manslaughter.”

17. Section 205 provides that any person who commits the felony of manslaughter is liable to imprisonment for life.

18. According to in the Supreme Court Petition No. 15 and 16 (Consolidated) of 2015 Francis Karioko Muruatetu & another vs Republic (2017) eKLR the following guidelines ought to be considered before sentencing. Age of offender.

Being a first offender

Whether offender pleaded guilty

Character and record of the offender.

Commission of the offence in response to gender-based violence.

Remorsefulness of the offender.

The possibility of reform and social re-adaption of the offender.

Any other factor that the court considers relevant.

19. It goes without saying that sentencing impacts not just the individual offender but also the community, and indeed the entire justice system [it requires] … the participation of the victim, and generally infuse restorative justice values in the sentencing process. [it should] Significantly... champion the national value of inclusivity by promoting community involvement through use of non-custodial sentences in suitable cases (paraphrasing Hon Willy Mutunga CJ in Sentencing Policy Guidelines)

20. What is clear from the facts of this case, is that there was no of committing the crime and even the deceased participated in the events that led to same. The Pre- Sentence Report recommends for a non-custodial the same.

21. The subject is a first time offender, genuinely remorseful. His family have initiated reconciliation with the deceased’s family.

22. The Subject has been in custody for one year. He has learnt a lesson.

23. I order that he be placed on Probation Supervision for three (3) years. During this period he is not to take alcohol. If he does so, then his Probation Order will stand breached and may be set aside and he be sentenced accordingly.

24. In addition, the Probation and After Care Services (PACs) to ensure that he attend school or training that will inculcate skills for his own development and rehabilitation.

25. The PACS to take up the reconciliation of the two families as part of the rehabilitation of the subject.

26. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY, 2022. MUMBUA T MATHEKA,JUDGE.CA EdnaMs Ngugi for the accused personMr. Kihara for StateMr. Ndung’u – PACs, POAccused present