REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HIGH COURT CRIMINAL CASE.  NO E011 OF 2020

REPUBLIC..............................................................................................PROSECUTOR

VERSUS

REUBEN KAITHIA GICHUNGE................................................................ACCUSED

JUDGMENT

1.   The accused has been convicted upon  is own plea of guilty for the offence of manslaughter Contrary to Section 202 as read with 205 of the Penal Code,  following a plea bargain agreement   reducing  the initial  charge of murder to manslaughter.

2.   The facts  accepted  by the Accused upon his plea of guilty are set out at Paragraph 9-14 of the plea bargain agreement as follows:-

“  9. On the 28^th day of September 2020 the deceased Robert Mbiti Ngela aged 51 years agreed with the accused person who was his son in law to go to his miraa farm and assist him cultivate the same so as to repay the debt which the accused owed the deceased. While at the farm Mary Kathure stated that after the accused got the deceased farm instead of helping he started drinking mukacha. At around 1400hrs the deceased’s wife joined him and they both became violent whereby they started abusing the deceased. The accused was telling the deceased that he would kill him and the accused’s wife one Kendi also went ahead and told the deceased that he was not her biological father and that he deserved to die.

10. The deceased returned home at 1300hrs and he was armed with a panga and he slapped Seberina Mukubu Mbiti’s (deceased’s wife) shoulder twice and stated that he wanted to kill her. Seberina Mukubu Mbiti then ran away to a nearby bush leaving her children behind.

11. At around 2000hrs while Josephat Muthuri was at his home with his father the deceased the accused was seen running towards Josephat Muturi’s home. The accused straight to the deceased person who was sited outside his kiosk and without saying a word the accused who was armed with a panga slashed the deceased’s forehead once and thereafter ran away leaving the deceased person bleeding profusely.

12. Mary Kathure heard screams from her father’s residence and rushed to know what was happening. On reaching there she found her father had been cut on the scalp and Josephat Muthuri who was with the deceased informed her that the accused was the one who attacked the deceased. They folded his head with a leso together with other people and escorted him to Mulika Police Station where they reported. He was then taken to Chaaria Mission Hospital where he was pronounced dead upon arrival.

13. The accused was arrested at his mother’s place by area manager of Kagwaru village one Paul Mworia Muriithi and brought to the police station on the 29^th day of September 2020 at around 1005hrs.

14. Post mortem was conduct at Meru Level 5 Hospital whereby the cause of death was found to be severe head injury due to cut wound.”

3.   The Court notes the circumstances of the case that the deceased and the accused are  father and son-in law and that the offence was committed in the context of a family quarrel  while the accused, the deceased’s wife and daughter were drunk. It would also appear that the deceased was the aggressor when he slapped his wife on the shoulder and stated that he wanted to kill her.

4.   I agree that the accused’s drunken state may have affected his capacity to form the necessary intention to kill the deceased and the charge was properly reduced to manslaughter. The accused’s drunkenness should also be taken into account in considering the sentence to be meted out.

5.   In mitigation, counsel for the accused prayed for a non-custodial sentence as he is sole provider for his very young children and at his youthful age of 27 years deserves another shot at life.

6.   The Pre-sentence - Probation Officers’ Report dated 25/1/2022 commended that the accused is suitable for non-custodial sentence and proposed Probation sentence for period of 3 years.

7.   The court is, however, all too aware of the prevalence of drink-driven killings even in family settings, and while the victims impacted by such killings are members of the same family or extended family of the accused, a court of justice must aim to deter such occurrences as much as reform the particular offender. A custodial sentence is appropriate for purposes of deterrence.

8.   The court considers that a sentence of eight (8) years imprisonment meets the justice of the case with regard to deterrence and reform of the offender. The youthful offender at 27 years shall be reformed and released from custody with still ample time for rehabilitation into the society as useful and responsible member.

ORDERS

9.   Accordingly, from the reasons set out above, having convicted the accused for the offence of manslaughter c/s 202 as read with 205 of the Penal Code, the Court sentences the accused to imprisonment for eight (8) years.

10.   The sentence of 8 years shall commence on 13/10/2020 when the accused was remanded to await his trial herein.

Orders accordingly.

DATED AND DELIVERED THIS 14^TH DAY OF MARCH 2022.

EDWARD MURIITHI

JUDGE

Appearances.

Mr. Chelule, Prosecution Counsel for DPP.

Mr. H. Kirimi, Advocate for the Accused.