Republic v Wandaka [2023] KEHC 23970 (KLR)

Republic v Wandaka (Criminal Case 48 of 2017) [2023] KEHC 23970 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23970 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 48 of 2017

RB Ngetich, J

October 19, 2023

Between

Republic

Prosecution

and

James Mwangi Wandaka

Accused

Ruling

1. By judgment delivered on July 24, 2023, this court found the accused guilty and convicted him for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. Particulars were that on the 9th day of November, 2015 at Maji Mazuri village in Koibatek Sub- County within Baringo County the accused unlawfully killed Alima Muthoni.

2. Upon conviction, the court directed the probation officer to prepare social enquiry report which was indeed filed on the 19th September, 2023.

Pre-sentence Report 3. The Report show that the accused is aged 65 years old, he is married with two wives. The first wife who is separated from accused lives in Nairobi and has six children who are independent. The second wife to the accused who is the deceased herein had five children with the convict.

4. The accused prays for leniency from court and says he did not intent to kill his wife but acted out of self-defense. He regrets having committed the offence and attributes to his state of being drunk and angry. He prays for non-custodial sentence based on his age and the need to continue taking care of his children who lost their mother.

5. The family members interviewed said the incident has had an impact in the relations amongst the larger family but over the years, the magnitude of the effect has reduced. The children of the accused and the deceased who are of mature age said they have missed parental touch since their mother’s life was taken away and their father has been in custody for a long time. They said with time they have been able to gather as the children of the victim and the accused and agreed to forgive their father. From the report, the church elders and the Pastor of Discipleship church and a few members of the community performed cleansing prayers at the home of the deceased and they have since forgiven their father and prayed for a non-custodial sentence.

6. The area administrator stated that the accused has been a very hardworking man within his community and he knew the victim as a member of discipleship church and had not heard of any differences between the two.

7. The Probation Officer’s view is that home rehabilitation is conducive for re-integration of the accused and recommended probation sentence for a period of 3 years.

Mitigation 8. Ms Wangari holding brief for the defence counsel Mr. Waiganjo mitigated on behalf of the accused. She submitted that she has seen the pre-sentence report which has captured the main aspects that relate to the accused. She further submitted that the accused is remorseful, has reconciled with the family of the deceased and the community who now have a good report of the accused. She prayed that the court considers the contents of the report in determining appropriate sentence.

Determination 9. Under section 205 of the Penal Code a person convicted of Manslaughter is liable to imprisonment for life. However, the court has discretion to impose a more lenient sentence depending on circumstances of each case.

10. I have considered accused’s mitigation through defence counsel. I have also considered the sentiments of the deceased’s family and of the accused. I also take note of the fact that accused is a first offender. Presentence report and evidence adduced show that the relationship between the accused and deceased was strained for a long time. The accused said they slept in separate rooms, never talked to each other, he is a first offender and there existed fights among them resulting in his ear being cut by deceased in one incident. The emotions and anger against each other had built for a long time. Their children have suffered as a result of the difference which led to death of one parent and incarceration of the other.

11. I however note that positive steps have been taken by the children, church and community to assist the family members forgive each other and they are willing to receive the accused back. The accused is aged 65 years, he is remorseful and regrets his actions. In view of the above, I am inclined to impose a non-custodial sentence.

12. Final Orders:

1. Accused placed on probation for a period of 3 years.

2. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNETTHIS 19TH DAY OF OCTOBER 2023. ..........................................RACHEL NGETICHJUDGEIn the presence ofMr. Karanja - Court Assistant.Ms Wangari for accused.Accused present.Ms Ratemo for State.