Republic v Ndauwa [2023] KEHC 23692 (KLR)

Republic v Ndauwa (Criminal Case 8 of 2019) [2023] KEHC 23692 (KLR) (Crim) (19 October 2023) (Sentence)

Neutral citation: [2023] KEHC 23692 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 8 of 2019

K Kimondo, J

October 19, 2023

Between

Republic

Prosecutor

and

Reuben Muchami Ndauwa

Accused

Sentence

1. The accused pleaded guilty to the lesser but cognate offence of manslaughter under a plea agreement recorded on 14th December 2022. At the time of entering into the present plea agreement, four prosecution witnesses had testified against the accused for the offence of murder.

2. The facts are truly tragic. A trifling argument over Kshs 150 ended in the death of Stephen Nyaga Mwangi (the deceased in this case). He and the accused were employees of Baraka Butchery deep within the Kinyago Slums in Kamukunji, Nairobi County.

3. On 14th January 2019, the deceased enquired from the accused whether he had received Kshs 150 from a customer for some meat. The accused admitted it but said he had spent Kshs 100. The deceased was angst leading to a fight. In the process, the accused stabbed him with a knife, escaped through a back door and hid the murder weapon. He then surrendered to Biafra Police Post. The police later recovered the blood-stained kitchen knife.

4. The deceased was rushed to Mother & Child Hospital where he succumbed to the injuries. The Post Mortem Form (exhibit 1) confirms that he died from “exsanguination due to severe chest injuries due to penetrating sharp force trauma”.

5. I have considered the mitigation tendered by the accused’s learned counsel, Mr. Marube. I have also paid heed to the pre-sentencing report dated 31st January 2023 under the hand of Ekulan Deborah, Probation Officer, Nairobi. The accused is aged about 34 years and a first offender. He has been in custody throughout and has taken some courses in prison including counselling. He prayed for leniency.

6. According to the pre-sentencing report the accused “upon recollection feels he overreacted” and should have “exercised self-restraint”. On the other hand, is the deceased’s son, Joseph Kamaru. He says his father was their bread winner. They still have not come to terms with his untimely demise. The family as well as learned Prosecution Counsel, Ms. M. Kigira, seek for a severe and deterrent sentence.

7. Sentence should be commensurate to the moral blameworthiness of the offender but also guided by the nature and gravity of crime. Manslaughter is a grave felony and attracts a sentence of life imprisonment. In all the circumstances of this case, I find that justice will not be served by a non-custodial punishment.

8. I accordingly sentence the accused to serve six (6) years in jail. In accordance with section 333 (2) of the Criminal Procedure Code, the period spent in remand custody from the date of his arrest on 14th January 2019 to today’s date shall be deducted from the sentence.

9. The accused has a right of appeal to the Court of Appeal within 14 days and as per the Rules of that Court but only on the sentence. A copy of the proceedings and sentence shall be supplied to him immediately.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF OCTOBER 2023. KANYI KIMONDOJUDGE