Republic v David Wasike Wesonga [2015] KEHC 3845 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL CASE NO. 10 OF 2010

REPUBLIC  ..............................................................PROSECUTOR

VERSUS

DAVID WASIKE WESONGA ............................................ ACCUSED

RULING ON SENTENCE

1. On 29/05/2015 this Court convicted the Accused person for the lesser but cognate charge of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code, Chapter 63 of the Laws of Kenya.

2.  In mitigation, the Accused person’s Counsel Mr. Masheti urged the Court to consider a non-custodial sentence given that the Accused is fairly young being 39 years old with a wife and 3 children who all depend on him for provision as well as his elderly mother and his other siblings.  He pleaded that the Accused person be given an opportunity of fending for his family which is dependant on him.  He further stated that the deceased was a cousin – brother to the Accused and there was no intention to kill him in the confrontation which led to the loss of life several months later and that the Accused took all reconciliatory steps and so reunited with the deceased’s family and that the families are now in harmony. The Court was also informed that the Accused reformed his life by becoming a born-again Christian and leads a good life in the community.  This Court was also reminded of the period of 2 years the Accused remained in custody during the trial as being adequate punishment and that the Accused remains very remorseful of the events leading to the death of the deceased.

3. The prosecution left the issue of sentencing to the Court.

4. I wish to state that the prosecution has a significant role to play in the process of sentencing. It remains under a duty to draw the attention of the Court to any aggravating circumstances including previous conviction of the Accused.  It also remains under a duty to draw the Court’s attention to any other issue that would impact upon the sentence and to also submit on the relevant provisions of the law that should be taken into account in sentencing. It is therefore not enough for the prosecution to simply leave the matter to the Court moreso in cases where the offence is of such magnitude and carries a maximum sentence of life imprisonment.

5. Sentencing is central in the administration of criminal justice.  It is the process stage in the criminal procedure at which a Court of Law of compeptent jurisdiction makes an order, after convicting an offender as to the specific penalty to be meted out.  In reaching that decision a Court is normally guided by several principles including Proportionality,Equality/Uniformity/Parity/Impactiability,Accountability/Transparency, Inclusiveness and the Respect for Human Rights and Fundamental Freedoms.

6. The main objective of sentencing largely remain retribution, detterence, rehabilitation, restorativce justice and community protection.  The Court therefore treads on a very delicate balance in taking into account all the foregone in full glare of one who has actually been convicted of a criminal offence on one hand and the victim or the family on the other hand. Sentencing however remains a matter for the sole discretion of the trial judge which must be exercised judiciously.

7. In this case, the offence was committed by two people; the Accused person and one David Waswa Wesonga who was not charged.  It is on record that the Accused person held the deceased whereas the said David Waswa Wesonga assaulted him.  PW4, Habil Wambari Omutakho testified that the deceased was assaulted using rungus but when he appeared at the scene and told the two assailants to stop beating the deceased, they obliged and left.  He also  confirmed that the deceased had been beaten all over the body.  The autopsy revealed the case of death was due to lack of blood and severe infection attributed to bed sores and lung infections which the trial Court found to have resulted from the injuries inflicted upon the deceased by the Accused person and the other person.

8. The deceased was aged 34 years old at the time of his death.  The record is silent on whether he had a wife and children though it is not disputed that the accused person and the deceased were cousin brothers.  This Court has taken into account the mitigations by the Accused person and also notes that he was in custody for two years during the trial.  The Court also remains at a loss on why the other assailant was not charged but is not lost to the fact that a life was lost.

9. Taking into account the totality of the circumstances of  the case and the guiding principles in sentencing, this Court will before sentencing the Accused person require a Pre-sentence Report to be filed in Court by the Probation Officer forthwith.  This matter shall therefore be listed for Mention on 23/07/2015 for further orders.

Orders accordingly.

DELIVERED, DATED and SIGNED this 2nd day of July, 2015

A. C. MRIMA

JUDGE