Republic v Kinoti (Criminal Case 30 of 2017)  KEHC 410 (KLR) (30 January 2023) (Sentence)
Neutral citation:  KEHC 410 (KLR)
Republic of Kenya
Criminal Case 30 of 2017
EM Muriithi, J
January 30, 2023
Raphael Munene Kinoti
1.The accused, initially charged with murder contrary to section 203 as read with 204 of the Penal Code, was by a plea bargain agreement dated December 19, 2022 herein charged for the lesser offence of manslaughter contrary to section 202 as read with 205 of the Penal Code and, upon the plea of guilty, convicted for the said offence, the sentence whereof is the subject of this ruling.
2.The court has considered the mitigation by the defence and the Probation Officer’s pre-sentence report, which recommends probation sentence in the case and the prosecution’s submission for custodial sentence.
3.The 31 year old man is said to be a first offender and it is urged by the Probation Officer and the accused’s counsel that the circumstances of the killing was at drunken spree which was shown as the accused’s stamen to the Probation Officer when the deceased indicated as having attacked the accused and others at a drink party hosted by one Kaai, the deceased’s son, in fit of anger over the demand for piece of land by the said son, and the accused had taken “a stick and in self defence hit him on the head and [he] died.”
4.This version of events, which is relied on by the Probation Officer and the defence counsel is different from the facts of the case as pleaded to and accepted by the accused in the plea bargain agreement and before the court at the plea taking.
Facts of the Case
5.The facts of the case as set out in the plea bargain agreement, and which were at plea taking accepted by the accused as true leading to the conviction for the offence of manslaughter are as follows:
6.The sentence must be based on the facts of the case as admitted by the accused person in the plea bargain agreement and at plea, and not as recorded in the Probation Officer’s presentence report. The court considers that a deterrent sentence is warranted to punish and discourage the offender and others in the prevalent offence of killing, with or without malice aforethought, even in the circumstances of drunken stupor which may reduce the level of responsibility, regard being given to the accused’s drunkenness while committing the offence, which was not disproved by the prosecution but rather accepted as evidenced in the offer to plea bargain.
7.The court accepts that in sentencing the accused for the offence of manslaughter which carries a maximum penalty of imprisonment for life, credit and consideration must be given to the accused as a first offender who has pleaded guilty to the lesser offence of manslaughter and whose responsibility for the offence may have been diminished by the alcoholic drink taken at the time of the killing. The court will also take into account the youthfulness of the offender at 31 years with prospects of reformation and rehabilitation as well as his provider role for his young family.
8.The court considers an imprisonment term for seven years to meet the circumstances and justice of this case taking into account the interests reformation of the accused, the need to assuage the victim’s family and his community, as well as public interest in deterrence of serious crimes of murder and manslaughter.
9.The sentence of imprisonment for seven (7) years shall take into account the period of pre-trial detention of the accused awaiting his trial, in terms of section 333(2) of the Criminal Procedure Code. The accused was arraigned before the court on April 19, 2017; released on bail on January 30, 2018; and subsequently remanded upon his conviction on December 19, 2022. The accused has been in custody for a period of about 11months.
10.The court considers an imprisonment for the net period of six (6) years one (1) month after deducting the pre-trial detention period, will allow the offender to be released after about four years of custody in prison service where he shall undergo penal reformation activities, discipline and training. Release at the age of 35, as he should be on completion of sentence, has the offender still young enough for rehabilitation into the society for meaningful contribution thereto and to take up his father and provider roles for his family.
11.Accordingly, for the reasons set out above, the court having convicted the accused on his own plea of guilty for the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code sentences him to an imprisonment term of seven (7) years which shall take into account the period of eleven (11) months of pre-trial detention as aforesaid.Order accordingly.
DATED AND DELIVERED ON THIS 30TH DAY OF JANUARY, 2023.EDWARD M. MURIITHIJUDGEAppearancesMs. B. Nandwa Prosecution Counsel for the DPP.Mr. Mutuma, J., Advocate for the Accused.