1.The Accused was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge were that on the 5th day of October 2019 at Mulot Sunset Trading Centre within Bomet County, murdered Samuel Ndungu Njunge.
2.At the conclusion of the trial, this court found the Accused guilty of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. In convicting the Accused the court in its Judgment dated 15th June 2023 held as follows:-
3.This court heard the mitigation of the Accused on 26th July 2023. His learned defence counsel Mr. Kenduiwo submitted that the Accused and the deceased were very good friends who used to work together amicably and that he was very remorseful for what happened. Counsel further submitted that the Accused was married and had three school going children and that the children would suffer if he was placed in custody as he was the sole bread winner of the family as his wife was not engaged in gainful employment.
4.It was the Accused’s further mitigation that he was a first offender and that he was still traumatized by the death of his friend.
5.A pre-sentence Probation Officer’s Report was filed on 22nd June 2023 and it stated that the Accused asked for forgiveness and prayed for leniency from this court. The Report also stated that the Accused’s family was wary about having the Accused being placed on probation. That they were shocked by the offence as they considered the Accused and the deceased to be very good friends.
6.The Report stated that the deceased’s father had not been able to meet and talk to the Accused’s family and that the Accused’s family had showed a lack of commitment in trying to seek for forgiveness and reconciliation. That the victim’s family was devastated by the demise of their loved one and remained committed to finding justice through the court.
7.According to the report, the community and local administration were not keen on having the Accused serve a non-custodial sentence as they considered a possible reprisal from the deceased’s family. That those who committed the offence of murder were treated as outcasts and were usually exiled. The Probation Officer quoted the community members interviewed as being of the view that a non-custodial sentence would be a form of injustice to them as it was not enough to discourage or deter future occurrences.
8.Mr. Wawire, the learned Prosecution Counsel submitted that the Accused was a first offender and urged the court to rely on the Probation Report and particularly on the victim impact statement.
9.This court is guided by the objectives of sentencing as set out in the Judiciary sentencing Guidelines 2023. They include retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. Further guidance on sentencing was given by the Court of Appeal in Thomas Mwambu Wenyi vs Republic (2017) eKLR, where it held that:-
10.I have taken into consideration the circumstances of the case. In substituting the charge from murder to manslaughter, this court held at paragraph 41 of the judgement thus: -I have however not found sufficient evidence to prove that the Accused had the requisite mensrea. The Prosecution’s own witness PW3 told the Court that the Accused and the deceased were friends and worked together as butchers in Mulot and Sotik. It was clear to the court therefore that being butchers, knives were their tools of trade which would create doubt in the mind of the court as to whether or not the Accused had armed himself in preparation to kill the deceased. PW3 further testified that she overheard a quarrel about money and that the two fought with the deceased hitting the Accused with a rungu and the Accused stabbing the deceased. The Government Analyst PW5 stated that his findings suggested that both were injured as their clothes bore their own respective DNA. Considered together, this evidence does not disclose any premeditation or planning.
11.I have considered the above, alongside the Pre-Sentence Probation Officer’s Report and the Accused’s mitigation. It is my finding that the Accused does not deserve the maximum sentence of life imprisonment provided by Section 205 of the Penal Code. However, it is important that there be proportionality in sentencing the Accused as the sentence passed should be in accordance to the gravity of the offence. The Sentencing Policy Guidelines at paragraph 3:1 states:-The sentence meted out must be proportionate to the offending behavior. The punishment must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behavior is weighted in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender.
12.The issue of proportionality of a sentence was aptly stated in Hoare vs. The Queen (1989) 167 CLR 348, as follows: -
13.I have considered that the offence occurred as a result of the Accused’s temperament and reaction when the deceased demanded his money from him. To the mind of the court, the Accused would benefit from a rehabilitative custodial sentence.
14.In the end, I sentence the Accused to serve 20 years’ imprisonment. The sentence shall be deemed to commence from the date of his arrest and first arraignment in court being the 9th October, 2019.