Republic v Nyokabi [2022] KEHC 9928 (KLR)

Republic v Nyokabi (Criminal Case 45 of 2019) [2022] KEHC 9928 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9928 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 45 of 2019

TM Matheka, J

July 8, 2022

Between

Republic

Prosecution

and

Samuel Ndungu Nyokabi

Accused

Ruling

1. The accused Samuel Ndung’u Nyokabi was found guilty of Manslaughter Contrary to Section 202 as read with 205 of the Penal Code, and convicted accordingly vide this court’s Judgment dated 25th May 2022.

2. In mitigation, the accused’s counsel Ms. Ogange, submitted that the accused person is married with children and he was in in a rocky marriage marred with fights.

3. She submitted that most of the time his wife was away from the matrimonial home and the accused would dedicate his time and resources in singlehandedly raising and or taking care of his children.

4. She submitted that the incessant crying of the child/victim herein greatly provoked the accused leading to the committal of the offence before court, that he is remorseful for his conduct and the fact that he killed his own son will weigh on his conscious for the rest of his life which guilt is enough punishment.

5. She urged this court to be guided by the authority in Colleta Kwamboka vs Republic [2015]eKLR where the court while sentencing the accused who had killed her own son stated as follows:-“…This death of her son which has left the accused degraded humiliated and the resultant scar thereof which will take long to heal is enough punishment to the accused taking into account that she has been in custody for three (3) years…”

6. The counsel further urged this court to give the accused a lenient sentence.

7. This court on 31st May, 2022 ordered that a Pre-Sentence Report of the accused be prepared and filed by Probation and After Care Services (PACs) Nakuru. The same was sent to this court’s email on 30th June, 2022.

8. What emerges from the report is that the accused is 37 years old and he attended school at Kiamaina primary school up to class 6. He is married to two wives one being the mother to the victim herein. His marriage to the deceased’s mother was troubled from the onset as she is said to have been engaging in excessive consumption of illicit brew as well as chewing miraa. It is reported that most of the time the deceased’s mother neglected her children and after the incident she ran away to unknown place, and her whereabouts are unknown to date.

9. Regarding the circumstances of the offence, the accused maintains that he left the deceased with his mother and went to work and when he came back he found him dead. It is reported that the deceased’s maternal grandmother who was also a resident of Kiamaina relocated from the area immediately after the incident. The accused family wishes the accused be granted non-custodial sentence with a hope that they will settle this matter amicably and keep good relations with the victim’s side.

10. In its conclusion, the report recommends that the accused is suitable for a non-custodial sentence of 3 years’ probation supervision.

11. The issue before court is sentencing. This court found the accused guilty of the offence of Manslaughter. Manslaughter is defined under Section 202(1) of the Penal Code as “any person who by an unlawful act causes the death of another person is guilty of the felony termed manslaughter.”

12. Section 205 provides that any person who commits the felony of Manslaughter is liable to imprisonment for life.

13. Before passing sentence the court should consider the evidence, nature of the offence and circumstances prior to the commission of the offence as well as any mitigating factors.

14. The Accused person has been in custody since 2019. Hence under Section 333 (2) of the Criminal Procedure Code that period must be taken into account when sentencing.

15. From the evidence on record and the aforementioned Pre-Sentence Report, The accused was a father of the deceased and he had a troubled marriage with the deceased’s mother This court in its judgment found that on that fateful day the accused appeared to have been inflicting some discipline on the child with anger against his mother and that the state in which the child was found was in total neglect. That for some reason the accused hit the deceased and in the process smothered him but he did not have an intention of killing him.

16. The Pre-Bail Report is favorable to the accused person, he is the first time offender and he is remorseful. His family are willing and ready to accept him back to the society.

17. In Republic vs Catherine Ndunge Muthoka [2019] eKLR, the accused was in custody for eight years and was sentenced to 5 years’ probation supervision for murder of her child by drowning. It was observed that:“27. In my view keeping the accused in custody will not only be detrimental to her but also to the welfare of her children and her ageing grandparents. Having considered the circumstances of this case, while I agree that the period that the accused has served in custody is not sufficient to have her unconditionally released, the factors of this case militate against her being kept in custody. It is neither in her interest, the interest of the society or her family that she continues being in custody.28. In the premises together with the period that she has spent in custody, I hereby sentence her to 5 years’ probation during which period she will undergo counselling and therapy.”

18. The accused person has been in custody since 18th September 2019. I doubt that it can be said he has not learnt anything from such incarceration. He appears to be still in denial and would require time to deal with what he did. In the circumstances, it is in order that the following orders to issue;1. Accused be placed on Probation Supervision for 3 years (has been custody for over three (3) years).2. Guidance and Counselling by Probation and After Care Officers, to avoid further conflict.3. Orders accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL AT NAKURU THIS 8THDAY OF JULY, 2022. MUMBUA T. MATHEKAJUDGEC/A EdnaMr. Kihara for StateMs. Mwaniki holding brief for Ms. Ogange for accusedAccused present