Republic v Mwabiso [2024] KEHC 11004 (KLR)

Republic v Mwabiso (Criminal Case 1 of 2018) [2024] KEHC 11004 (KLR) (23 September 2024) (Sentence)

Neutral citation: [2024] KEHC 11004 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Case 1 of 2018

GMA Dulu, J

September 23, 2024

Between

Republic

Prosecutor

and

Jeremiah Mwabiso

Accused

Sentence

1. The accused person herein, who was initially charged with murder contrary to section 203 as read with section 204 of the Penal Code, the particulars of which being that on 26th December 2017 at Malatini estate in Voi Sub County within Taita Taveta County murdered Miriam Jane Awino; was after a full trial, convicted of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

2. Consequently upon his conviction, a pre – sentence report and victim impact report were filed, which this court has perused and considered.

3. In oral submissions also, the learned Prosecution Counsel Mr. Sirima relied on the pre- sentence report and the victim impact report filed. The Prosecuting Counsel also relied on the Judiciary’s Sentencing Policy Guidelines of 2016, page 48 paragraph 237 relating to aggravating circumstances and the use of dangerous weapons, and the effect of same in sentencing in criminal cases.

4. The Prosecution Counsel in particular, emphasized the fact that 27 stab wounds were inflicted on the victim who had actually lived with the accused person as wife and husband. Prosecuting Counsel further relied on a case of Abraham Kibet Chebukwa –vs- Republic [2020] eKLR wherein the Court of Appeal upheld a sentence of 15 years imprisonment imposed by the High Court for manslaughter, in a case where the victim being was a wife.

5. The learned Prosecution Counsel thus suggested a sentence of ten (10) years imprisonment, after considering that the accused person is a relatively young man who is remorseful.

6. On her part, the learned defence counsel Ms. Munyari, in mitigation relied on the pre – sentence and victim impact reports filed and emphasized that both reports confirmed the remorsefulness of the accused person.

7. The defence counsel further added that the accused person was 25 years old, and was presently married with 3 children with a wife who was unemployed, and that he is the bread winner of the family.

8. Counsel also reminded the court that the accused person had been out on bond, operating boda boda (motor cycle hire) business to support his family, and that no other complaint had so far been received against him for the time he was out on bond.

9. Defence Counsel added that, both the accused person and the victim were drunk when the incident occurred, and that there were circumstances which created anger between them and also family issues, of jealousy and destruction of property, resulting in what could amount to provocation.

10. Defence counsel thus urged this court to impose non-custodial sentence, and relied on the case of Republic – vs – Kevin Oduor Oloo [2022]KEHC 17/05/2022 as well as the case of Republic – vs – Ruth Auma Idojo [2024] KEHC.

11. Having myself considered the written pre – sentence and victim impact reports filed, as well as the oral submissions of counsel for the Director Public Prosecutions and the mitigation of learned defence counsel, I note that the deceased was also a young woman of 26 years. The accused person is equally admittedly young, and also a first offender and remorseful.

12. I note that the accused was definitely angered and incensed by the conduct of deceased in burning household items, but the twenty seven knife stabs were many and needlessly vicious. Thus though both were drunk, and accused was angered, in my view, a non – custodial sentence is not appropriate herein, as the force used and number of stabs was senseless.

13. Consequently, I sentence the accused person to serve five (5) years imprisonment from the date of his conviction, which is 11th June 2024.

DATED, SIGNED AND DELIVERED THIS 23RD DAY OF SEPTEMBER 2024 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred/Trizah – Court AssistantsMs. Moke for StateMr. Mwanyumba holding brief for Ms. Munyari for the accusedAccused