Republic v Wigama [2022] KEHC 16119 (KLR)

Republic v Wigama (Criminal Case E081 of 2021) [2022] KEHC 16119 (KLR) (Crim) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16119 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E081 of 2021

DO Ogembo, J

December 7, 2022

Between

Republic

Prosecutor

and

Celestine Wigama

Accused

Ruling

1. The accused Celestine Wigama was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. That on October 17, 2021 at Kamunde Apartments, Kware Estate within Embakasi sub-county, within Nairobi County, she murdered Dennis Muhalia Matungu. She pleaded not guilty to the charge. However, before the commencement of the trial, the accused entered a plea bargaining agreement with the prosecution following which she pleaded guilty to the charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. This was on October 26, 2022.

2. Upon entering the plea of guilty on the charge of manslaughter counsel for the applicant proceeded to address the court and raised several factors of mitigation for consideration by the court including:-i.That the accused is a first offender who has never before been arrested or charged in any court.ii.That she has always cooperated with the investigators.iii.That by entering a plea bargaining agreement, she has saved the Court’s time.iv.That she is a family person who was married to the deceased and with 1 daughter who now lives with relatives and other small son.v.That she was in an abusive marriage with the deceased.vi.That she is remorseful and asks for forgiveness.

3. A prayer was made for a non-custodial sentence. Counsel relied on the case of Republic v Truphena Donga Aswani (2021)eKLR.

4. The prosecution side, having considered the probation officer’s pre-sentence report, only urged for a sentence that would give dignity to the deceased.

5. This court, called for and obtained a probation officer’s pre-sentence report. The same dated November 10, 2022 was duly filed in court on November 14, 2022. In the report, it is noted that the accused cites her inability to control her anger for the commission of the offence and that the accused may have internalized violence from the family level. The report further alludes to a possibility of revenge on the accused from the family members and friends of the deceased, 28 years at the time of his death. Also reflected on the report is the negative attitude of the family towards the whole process of plea bargaining. This court gets the impression that the family of the deceased has hugely been negatively affected by the loss of the deceased, have rejected any form of reconciliation and even rejected the child of the accused and the deceased. The attitude of the community is also expressed to be negative and unreceptive towards any form of non-custodial sentence. The victims have prayed for a deterred sentence.

6. I have considered the nature of the charge the accused faces, and the facts and circumstances of the case. I have also considered the mitigation of the accused and the plea of the protection. And also the independent pre-sentence report submitted by the probation officer.

7. The accused as expressed remorse and saved the time of the court by entering the plea bargaining agreement with the prosecution. She is a young lady with 2 children. However, the offence to which she has pleaded is serious. A soul of a young man aged only 28 years was cruelly lost by the action of the accused. And from the report of the probation officer, the family of the deceased has been affected beyond any comprehension by his death. The accused herself has cited her inability to control her anger for the commission of the offence.

8. Considering all these factors, this court is convinced that the aggravating circumstances herein outweigh the mitigation that the accused has raised. And that the accused deserved a custodial sentence.Section 205 of the Penal Code provides.“Any person who commits the felony of manslaughter is liable to imprisonment for life.”

9. Taking into account the above observation and the sentence provided for in law as above, I sentence the accused to serve 15 years imprisonment. Since the accused has been remanded in custody pending determination of this case, this sentence shall run with effect from November 9, 2021 when she was first arraigned in court pursuant to section 323(2) of the Criminal Procedure Code.

Ruling read out in open court in the presence of the accused, Mr. Waweru for the accused and Ms. Kimani for the state.D O OGEMBOJUDGE7TH DECEMBER, 2022Mr Waweru:We pray for copy of the ruling and leave to appeal.Ms Kimani:We also pray for copy of the ruling.Court:Leave to appeal, though automatic right, is granted to both parties. Copies of proceedings and ruling (Sentence to be prepared and supplied to the parties as urged.)