Republic v Joseph Mathenge Githethuki [2019] KEHC 1916 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL CASE NO. 19 OF 2011

REPUBLIC

VERSUS

JOSEPH MATHENGE GITHETHUKI...........ACCUSED

RULING ON SENTENCE

1. The accused was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code; after plea bargaining the offence of murder was reduced to the offence of Manslaughter contrary to Section 205 of the Penal Code; an agreement was reached and a Plea Bargain Agreement was signed between the Office of the Director of Public Prosecution and the accused; the same was accepted and adopted by the court;

2. The particulars of the offence were read out to the accused which was that on the 6th September, 2011 at 2. 30am the accused reported to the police station that he had killed a person who had attacked him at Njaithini Village; the police escorted the accused to the scene of crime and found the deceased’s body; who was identified as Antony Munyiri and a postmortem was produced in evidence and marked as “PExh.1”;

3. The accused was convicted on his own plea of guilty to the offence of manslaughter and to having unlawfully killed the deceased in self defence after being attacked by him;

4. In mitigation made by his counsel, Mr. Maru, this court was urged to take into consideration that the accused had been remanded since 2011 which translates to a period of eight (8) years; Counsel urged the court to also consider that was a law abiding citizen with no previous record and that he had been adequately punished; due to the positive Victim Assessment Report and the mitigating circumstances advanced in favour of the accused and also being first offender, counsel submitted that the accused be given a chance and that he be released back to society;

5. The prosecution also submitted that the accused did not have a previous criminal record and left the sentencing to the court;

ANALYSIS

6. It is this court’s considered view and that it must take into consideration the facts and circumstances of the instance case and impose an appropriate sentence; it must also take into consideration whether the accused realizes the gravity of the offence and is repentant and genuinely remorseful for the unlawful act; and that the accused is ready and willingly to learn from his mistakes and to reform in order to become a good citizen;

7. In this instance this court has considered the gravity of the offence and balanced it against the facts and the circumstances in which the offence was committed; the offence is found to have been committed in self defence after the accused was attacked by the deceased; he did not plan or intend to commit the act;

8. This court has taken into consideration that the accused pleaded guilty when given the opportunity; and that he is remorseful for the unlawful act that he committed leading to the unfortunate loss of a life; it also noted that he is a first offender; he is also a father of two children and the eldest in his family and played a big role in providing for his family and parents who are peasants; he was a livestock keeper and during the period spent in custody had improved his skills;

9. Upon reading the Victim Impact Statement Report the same is found to be favourable; there exists no grudge between the accused and the deceased’s family; and there is no evidence in the Report that there has been any emphatic denunciation of the accused’s actions by the deceased’s family nor the community; that the report does not bear any signs of a strong need to have the offender removed from society; and that it recommends the release of the accused back into society;

10. In the circumstances the accused is hereby sentenced to a term of three (3) years imprisonment; he has been remanded in custody since the 14/07/2011 when he was arraigned, which translates to a period of more than eight (8) years; this period shall be taken into consideration and shall be set off against the term; which effectively means that the accused has served his sentence;

11. The accused to be set at liberty unless otherwise lawfully held.

Orders accordingly.

Dated, Signed and Delivered at Nyeri this 3rd  day of October, 2019.

HON.A.MSHILA

JUDGE