Republic v K T & G K [2017] KEHC 2132 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO.107 OF 2014

REPUBLIC  …………………………………..PROSECUTOR

VERSUS

K T……………………………………………..1ST ACCUSED

G K…………..…………………….…………..2ND ACCUSED

SENTENCE

1. The accused persons herein K T and G K were initially charged with the offence of Murder contrary to Section 203 as read with section 204 of the Penal Code. By a plea bargain agreement entered into between the accused and the state, the said charge of murder was reduced a lesser charge of manslaughter.

2. The particulars of the offence were that on 18th August 2014, within Narok County unlawfully caused the death of R K S.

3. The accused pleaded guilty to the charge of manslaughter and were consequently convicted on their own plea of guilty.  The facts of the case were that the 1st and 2nd accused were father and son respectively while the deceased was their son-in-law and brother in law having been married to the 1st accused’s daughter. It was stated that on 18th August 2014, the deceased visited the home of the 1st accused ostensibly to attend a reconciliation meeting between deceased and his wife following a marital dispute. Even though the meeting was attended by many village elders, the reconciliation did not take place as the deceased not only refused to take back his estranged wife but also made some explicit derogatory remarks against the 1st accused.

4. The conduct of the deceased incensed the accused persons who descended on the deceased and beat him with rungus. The deceased sustained injuries as of result of the beating and was rushed to hospital where he succumbed to the said injuries.

5. In mitigation, Mr. Okemwa learned counsel for the accused submitted that they were remorseful for the offence and had pending the determination of this case, made efforts to apologize and reconcile with the family of the deceased with whom they still maintained cordial relations. Mr. Okemwa prayed for a non-custodial sentence for the accused while arguing that it was the deceased who precipitated the assault by provoking the accused while using insulting/foul language against them.

6. I have considered the probation officer’s report filed in court on 25th September 2017 in which a recommendation for a non-custodial sentence has been made for both accused persons. The probation officer noted that the accused persons are remorseful and were provoked to do what they did by the deceased’s violent action attacks. It is clear to me that the emotional nature of the meeting that the deceased had with his in-laws followed by the bitter exchange of words culminated in the unfortunate death of the deceased. It is noteworthy and unfortunate that what began as a reconciliation meeting quickly degenerated into a physical confrontation with fatal consequences.

7. I also note that the accused made efforts to take the deceased to hospital when they realized that he had been injured but unfortunately, the deceased succumbed to the injuries about 3 weeks later. I further note that the accused persons, who are father and son respectively, were aged 68 and 17 years respectively as at the time that the offence was committed. They stayed in custody for several months before they were released on bond pending the hearing of their case.

8. Taking into account all the relevant factors surrounding this case, I am of the considered view that a non-custodial sentence would be appropriate in this case. I am certain that the period that the accused stayed in custody served as a good lesson to them to keep off crimes not to mention the psychological torture that they will still have to endure following the death of the deceased.

9. Consequently, I order that the accused will each serve 2 years probation during which period they will be supervised by the probation officer of their area.

Dated, signed and delivered in open court this 14th day of November, 2017

HON. W. OKWANY

JUDGE

In the presence of:

-  Mr. Otieno for the State

-  N/A Okemwa for Accused

-  Mr. Omwoyo: court clerk