Republic v Makokha [2023] KEHC 27123 (KLR)

Republic v Makokha (Criminal Case E009 of 2023) [2023] KEHC 27123 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27123 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E009 of 2023

REA Ougo, J

December 11, 2023

Between

Republic

Prosecutor

and

Douglas Namasaka Makokha

Accused

Ruling

1. Douglas Namasaka Makokha was charged with the murder of Saul Muhuyi Makokha. On the 15th of November 2023 the accused pleaded guilty to charge of Manslaughter after a plea bargain agreement.

2. The facts are that the accused and deceased are brothers. The deceased had bought some items and left them in the accused’s house. On 21. 3.2023 the deceased went to the mother’s house complaining that the accused had refused his items, which were a T.V décor set and shaving machine. As the deceased was in the mother’s house the accused followed him and tried to explain that he needed time to return the items but the deceased was adamant that he wanted the items. A quarrel ensued and the accused left his mother’s house and went to his house. The deceased followed him and they started to fight at the door. Their mother ran to the neighbours to get help to separate her sons. On going back, she saw the accused stab the deceased with a kitchen knife. The mother and neighbour disarmed the accused. The deceased was rushed to Lugulu Hospital but died as a result of the stab wound. The accused was arrested taken to Sinoka police post and was later charged with the offence of murder which was substituted with manslaughter as a plea bargain agreement.

3. The accused admitted the facts and was convicted on his plea of guilty.

4. The prosecution stated the accused is first offender. I sought s pre-sentence report on the accused thereafter.

5. The pre-sentence reports indicate that he is 25 years old. The deceased was his brother. He is married and has 2 daughters. His wife pleads for leniency. The accused is remorseful pleads for leniency and seeks a non-custodial sentence. He promises to take care of his deceased brother’s family. His mother too seeks that he be given a non-custodial sentence. The family is ready to settle away from home. The report recommends a non-custodial sentence of three (3) years’ probation.

6. Mr. Okaka for the accused stated as follows in mitigation; the accused is first offender, he is the sole breadwinner of his family. He is very remorseful and has been in custody for some time. The probation report is favourable. Reliance was made in the case of Philip Muthiani Kathiwa 2015 eKLR where the circumstances were similar to the ones in this matter and the court placed the accused on probation. That the family is willing to have him back and has planned on where he will stay. That the court should grant him a chance and give him a non-custodial sentence.

7. I have considered the pre-sentence report, the accused’s mitigation, and the circumstances that led to the death of the deceased together with the guidelines on sentencing. Unfortunately, a fight with his brother resulted in his own brother's death. I note that they had no sibling rivalry. The accused’s family is willing to accept him back and has planned to have him settle elsewhere as per customs. I am persuaded that a non-custodial sentence is appropriate in this case. I therefore sentence the accused Douglas Namasaka Makokha to three (3) years’ probation.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 11TH DAY OF DECEMBER 2023. R.E. OUGOJUDGEIn the presence of:Douglas Namasaka Makokha/Accused- PresentMr. Okaka -For the AccusedMiss Mwaniki -State Counsel ODDP