Republic v Muhinde [2023] KEHC 25553 (KLR)

Republic v Muhinde (Criminal Case 19 of 2023) [2023] KEHC 25553 (KLR) (16 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25553 (KLR)

Republic of Kenya

In the High Court at Eldama Ravine

Criminal Case 19 of 2023

RB Ngetich, J

November 16, 2023

Between

Republic

Prosecution

and

Alex Maroba Muhinde

Accused

Sentence

1. The accused Alex Maroba Muhinde had been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge being that the accused on the 4th day of August, 2018 at Maji Mazuri village, Maji Mazuri Location in Koibatek Sub- County within Baringo County, the accused murdered Agnes Mukangala.

2. The charge was read over to the accused who denied the charge and the trial process commenced. However, when the matter came up for mention before me on the April 24, 2023, the prosecution informed the court that the father of the deceased who was present in court has come to terms with the death of the deceased and they were amenable to plea bargaining. The matter was the fixed for mention on the May 25, 2023 to confirm the position on plea bargaining.

3. On the June 15, 2023 the plea agreement was duly executed and the charge was eventually reduced to manslaughter following a plea-bargaining agreement. On the said 15th day of June, 2023, the charge of manslaughter contrary to section 202 as read with 205 of Penal Code and its particulars were read over and explained to the accused who pleaded guilty and was convicted on his own plea of guilty.

Facts 4. The brief circumstances surrounding the offence is that the accused and the deceased were husband and wife and on the August 4, 2018, at around 6:00 p.m, at Maji Mazuri Location, the deceased aged 23 years was at the saloon of one Mercy Wekesa: she requested the owner of the saloon to make her hair and she sent her pieces of hair from the nearby saloon and before Mercy left for the hair, the accused aged 30 years arrived and called the deceased outside the saloon.

5. The deceased heeded to the call and went outside and they started talking although they had separated before the incident. The deceased was standing on the verandah and her husband was standing on a floor besides the door and the accused gave the deceased his photograph.

6. While they were talking about the separation issue, the accused became annoyed and picked a kitchen knife from the saloon and stabbed the deceased severally on the stomach and left. The deceased collapsed which attracted Mercy Wekesa, Martin Murigi and Anthony Gitonga who rushed to the scene since they were neighbouring the saloon.

7. The accused feared that he would be beaten and started running away from the area and at about 200 metres from the scene, the accused dropped the knife which was witnessed by Mirriam Mwangi who recovered the same. The accused ran towards the trading centre leaving the deceased lying down. Miriam and Anthony Mwangi confirmed that they saw a group of people chasing the accused.

8. Anthony Gitonga and Martin Murigi assisted by other members of the public looked for a motor vehicle and rushed the deceased to hospital. Sergeant Sammy Cheruiyot and Joseph Waweru followed the deceased to hospital. She passed on while undergoing treatment.

9. On August 9, 2018 post mortem was conducted by Dr Arafa of Eldama Ravine who formed the opinion that the cause of death was direct stab to the heart, lungs, spleen and intestines causing internal hemorrhage consistent with multiple sharp stab wound injuries consistent with murder. The accused person was arrested and charged before this court.

10. Samples from both the deceased and the accused were taken and an exhibit memo form was prepared and the samples escorted to government chemist together with the other exhibits and report was prepared. The police file was compiled and the accused charged with the offence of murder now reduced to manslaughter upon plea bargaining agreement.

11. Upon the charge of manslaughter contrary to section 202 as read with section 205 of Penal Code and particulars were read over and explained to the accused, he admitted the charge and he was convicted on his own plea of guilty. The prosecution informed the court that the accused to be treated as a first offender.

Pre-sentence Report 12. The court called for a pre-sentence report to be prepared before mitigation. It was filed on the September 20, 2023. From the report, the accused was born in 1987. He attended Kapchonge Primary school and dropped out in class 6, he stayed shortly with his brother in law helping with domestic chores and was later employed as a casual in different hotels within Eldoret Town and he later relocated to Baringo County in 2010 specifically in Maji Mazuri Centre where he was employed in a saw mill. It is here where he met the deceased. They stayed together and were blessed with one child who is 8 years old.

13. The accused states that he had domestic quarrels with the deceased when they were staying together as husband and wife and the deceased at one time had gone back to her parents where she was advised to separate and the accused did not like the idea of separation but tried to reconcile with no success. The accused stated that the deceased went back to her former matrimonial home to pick some personal belongings and the accused did object to her taking the family album(photos) and the same led to a fight between the two where the accused took a kitchen knife and stabbed the deceased on the stomach and hands and she succumbed to the injuries while undergoing treatment.

14. The deceased’s family opposes non-custodial sentence for the accused stating that the accused’s family has never bothered to look for them to say sorry for what happened. The accused’s family stated that they have never met to discuss the issue and again they live in different places. The family stated that they leave the decision of sentencing to the court.

15. The local administration stated that the offender was in Maji Mazuri area doing casual jobs and during the said period, they did not have any issue with him save for the current incident which had happened as a result of unresolved domestic quarrels. The local chief states that if in any case the accused is granted a non- custodial sentence, he is advised not to go back to Maji Mazuri for his own safety.

16. The probation officer indicates that in view of the above sentiments, this Honourable court may pass an alternative sentence since community-based rehabilitation may not be viable in the absence of the family and community support which is however subject to court’s discretion.

Mitigation 17. Ms Nyamwega representing the accused mitigated on his behalf. She stated that she has perused the pre-sentence report which is not favourable to the accused and submitted that the accused is remorseful for the unfortunate incident and prays for leniency. Counsel urged the court to release the accused on the ground that the children are now living without the parents as the mother is now deceased and the accused is the only person who can take care of the children who are now living with the grand parents who are not able to take care of them. That the accused is praying for a non-custodial sentence.

18. Ms Ratemo representing the state submitted that the circumstances that have befall the accused’s children were brought about by his actions since the accused killed their mother. That although there was no intention, the circumstances were that he was not able to manage the issue of separation from his wife.

19. She submitted that the local administration’s sentiments were that they are opposed to the accused going back to the same area of Maji Mazuri and the family of the deceased are also yet to come to terms with loosing their daughter. The deceased was young and her life was cut short by the actions of the accused and so the accused should be given custodial sentence since at the moment, re integration back to the society is unsafe for the accused considering that the accused has not initiated reconciliation with the deceased’s family.

20. Ms Nyamwega in response to the prosecution’s sentiments added that on the issue of the deceased joining his family, there is no problem with the family now that his family lives in Trans Nzoia where he can rejoin them. That the family of the deceased indicated to her that they have forgiven the accused.

21. Counsel submitted that the accused dropped out of school in class six and he was arrested on the April 1, 2018 where he has been in custody for a period of five years now, counsel urged the court to consider the period the accused has been in custody while meting out the sentence. That the accused has sought forgiveness from the deceased’s relatives who have agreed to forgive him. Counsel stated that the accused is requesting for a non-custodial sentence so that he can advance the issue of family reconciliation under Tugen culture. That the accused has learned and he is ready to change and be a good citizen and being a first offender, he called upon the court to consider this.

22. Ms Ratemo representing the state submitted that although there was no intention to commit the offence, the accused used unreasonable force in trying to mitigate the situation and therefore occasioned the deceased to loose his family. That the deceased had a family which he was supporting through casual labour and his family has been left with no one to take care of them.

23. The prosecution urged the court to consider custodial sentence so that the accused can be rehabilitated on anger management. That there were 2 wives who were dependent on the deceased who have been left widowed.

Determination 24. Under section 205 of the Penal Code a person convicted of Manslaughter is liable to imprisonment for life. Life sentence has however declared unconstitutional by court of appeal in Malindi Court of Appeal Criminal Appeal No 12 of 2021, Julius Kitsao Manyesoversus Republic. The court has discretion to impose determinate sentence depending on circumstance of a case.

25. I take note of the fact that the accused and the deceased were husband and wife at the time of the incident but had separated. From the pre-sentence report, the deceased left the matrimonial home and went to live with her parents and had on the date of the incident visited her matrimonial home to pick her belongings as her parents were against the issue of her and her husband (accused) reconciling.

26. I have considered that the killing resulted from a domestic quarrel between husband and wife, and it was not premeditated.

27. I have considered the accused mitigation; I have also considered the Probation Officer’s pre-sentence report which is negative for non-custodial sentence. In as much as there was a disagreement between the accused and the deceased, the accused applied excessive force on the deceased which is evidenced by the nature of injuries sustained by the deceased.

28. The accused has been in custody since 4th August, 2018 when he was remanded awaiting trial, and has therefore been in custody for almost 5 years now. Considering circumstances of the offence and the fact that no reconciliation has taken place and the community is not ready to welcome the accused, I am inclined to impose custodial sentence.

29. Final orders:-1. Accused to serve 15 years imprisonment.2. Period served in remand to be reduced from the sentence.3. Right of Appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 16TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Ms Ratemo for State.Accused present.