Republic v Njoki [2023] KEHC 25097 (KLR)

Republic v Njoki (Criminal Case 12 of 2022) [2023] KEHC 25097 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25097 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case 12 of 2022

RM Mwongo, J

November 6, 2023

Between

Republic

Prosecution

and

Wycliffe Kinyua Njoki

Accused

Judgment

1. The Accused is charged with the murder of Alex Maina Wanjohi on 13th June 2022, at Karima Bus Stage in Karati Location, Kirinyaga West sub-county. On 2rd November,2022 he pleaded not guilty to the offence.

2. On 31st May, 2023 the defence proposed a plea bargain agreement. The matter was given a date for Plea Bargain Agreement settlement on 16th May, 2023 to give the parties time to consider the proposal.

3. The accused had been granted bail on 23rd October 2022, but the surety was discharged on 5th June, 2023 at his request, and the accused was remanded back into custody

4. The parties signed a Plea Agreement pursuant to Section 137A (i) and 137B of the Criminal Procedure Code on 26th July 2023 which they availed to court on the same day. The Plea Bargain was adopted by the court pursuant to Section 137G of the Criminal Procedure Code. The accused’s rights under section 137F of the CPC were read to him and he answered in the affirmative.

5. Further, the court was satisfied that the accused had understood the contents and that he had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion.

6. Accordingly, on 26th July, 2023, the court adopted the PBA and convicted the accused with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

7. The brief facts of the case are that on 11th June 2022 at about 22. 30 hours the accused had been drinking at Gracious Headquarters bar at Karima Stage, when the owner ordered everyone out as drinking hours were over. The accused left and went to his motorbike outside. As he was about to start the engine he was slapped at the back of his head. As he turned to see who it was he saw the deceased, who hit him on his forehead with his head.

8. A struggle ensued between the two and in the melee, the accused picked a stick and hit the deceased with it on the head. He then heard someone shouting to them to stop fighting. It was then that he realized that he realized that he was fighting with the deceased when the man shouting at them shone a torch on them.

9. A cousin of the deceased found the deceased lying on the road looking drunk. He asked what had happened, and he said he had fought with the accused. The cousin picked the deceased and took him to his place for the night. The following day the deceased remained asleep, and at 3. 00pm it was realized that he was weak and bleeding from the nose. The deceased’s friends later took the deceased to his house when he looked better, but the following day, they were shocked to hear that the deceased had passed away.

10. A post mortem report shows that the deceased had injuries on the face and neck, a grossly swollen head and a left black eye. Internally there was massive right sided subdural hematoma. The cause of death was indicated as“severe head injury following blunt trauma with a blunt object”

11. In mitigation, the defence stated that the accused was a first offender; that he was remorseful for causing the death of his good friend; that the accused was a young man aged 25years and in the prime of his life and capable of rehabilitation; that the court should consider the circumstances of the deceased’s death in that the accused had acted in self defence; that the accused had sought forgiveness from the deceased’s family as part of reconciliation as shown in the Probation report; and that he sought a non-custodial sentence on any terms set by the court.

12. The prosecution submitted that it had seen the Probation report which was positive; that the accused is from a humble family and the accused had no father. The state sought a three-year non-custodial sentence.

13. The Probation Officer’s report indicates that the accused is the son of a single mother, who had left the accused in the care of his maternal grandmother; that he had one sibling in grade 2; that he did his primary school and achieved a D plain, and thereafter did casual jobs; that with his mother’s help he bought a motorbike with which he did boda boda service within Karima village; that he had managed to construct a house for his grandmother.

14. The report indicates that the community viewed the accused as a good person who had no criminal record, and hence the incident shocked most people as he was a polite person and related well within the community. The Area Assistant Chief did not object to whatever sanction the court meted on the accused.

15. The family of the victim said that the deceased was aged 29 and unmarried; that the parents are still mourning his death; that they could not understand the reason for the fight between the good friends that led to the death of the deceased; that they had been approached by the accused’s family seeking reconciliation and agreed on what was to be given to wipe away their tears; and that they had forgiven the accused who had also frequently lent his motorbike to the deceased.

16. In conclusion, the Probation Report indicated that the victim’s family had no objection to the release of the accused on a non-custodial sanction; that the accused’s family had made a commitment to the deceased’s family which they will fulfill; and that the accused’s family is ready to receive him back. The report recommends that the accused should be given a non-custodial sentence to serve the community at Karima Police Post.

17. The applicable law on sentence for the offence of manslaughter is found under the provisions of Section 205 of the Penal Code which reads as follows;‘Any person who commits the felony of manslaughter is liable to imprisonment for life’The section provides for the maximum sentence that is life imprisonment; this court has taken into consideration the aggravating circumstances in that the convict murdered the victim by hitting her with a stick resulting in severe internal hemorrhage.

18. The supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR held that there are mitigating circumstances to be considered before sentencing as follows:“In sentencing the court will consider mitigating factors such as the following;a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social re-adaptation of the offender;j.Any other factor that the Court considers relevant.”

19. Taking into consideration the above sentencing guidelines, the mitigation of the accused and the Probation Report which recommended for a non-custodial sentence, the accused satisfies the criteria for a reduced sentence from the maximum life imprisonment.

20. The court notes that the accused was acting in self defence; that his antecedents indicate that he was known as a peaceful man, friendly to the deceased and had no record of criminal behavior. The Probation Report recommends a non-custodial sentence, which the court agrees with.

21. Accordingly, the court sentences the accused 6 years imprisonment, to be served as follows:a.The accused has spent one year in remand custody, which is hereby taken into account;b.The accused will serve three (3) of the remaining years in non-custodial sentence during which period he will do community service at Karima Police Post under the supervision of the Officer in Charge and the Probation Officer; and he shall also be engaged in a counselling programme on anger management and good living to help rehabilitate him;c.The remaining term of his sentence is hereby suspended;d.During the period of non-custodial service, should the accused not comply with the instructions of the Officer in Charge, Karima Police Post, or fail to attend the counselling or comply with the instructions of the Probation Officer or fall afoul of the law and be convicted for any offence, the accused’s sentence shall be liable to review forthwith, and he may be subjected to a higher sentence of imprisonment.

22. Orders accordingly.

DATED AT KERUGOYA THIS 6TH DAY OF NOVEMBER, 2023. ...........................R. MWONGOJUDGE