Republic v Fenwick Wangila Juma & 1 other

6. In mitigation counsel for the accused relied on the Plea Bargain Agreement dated 11/12/2024. He submitted that the accused who is 27 years is a first offender with no previous records, he is remorseful. He unexpectedly lost his wife with whom they were blessed with two children. The children have no mother and the father who is the accused herein has been in custody since 2022. The children have been without parents from 25/10/2022. The children’s best interest is to have their father to take care of them. That the accused has agreed to plead to a lesser charge to go back and take care of his children and pray for non-custodial sentence and invites the court to consider the time the accused has been in custody. In the Plea bargain Agreement, the accused recommended a custodial sentence of five (5) years. 7. The accused had from the onset of his surrendering been ready and willing to enter a plea of guilty; his behaviour showed signs of remorse. 8. The prosecution invited the court to rely on the terms of the Plea Bargain Agreement and to consider that a mother of two children was killed. The prosecution submitted that the court has discretion in sentencing. In the Plea bargain Agreement, the prosecution recommended a custodial sentence of ten (10) years; the prosecution had no previous records of the accused and he may be treated as a first offender. Analysis 9. It is the duty of this court to impose a sentence that meets the facts and circumstances of the case; this court has considered the full circumstances of the offence which is contained in the Plea Bargain Agreement; on the material date the accused left his place of work and headed to pick the deceased at her place of work. On their way, the deceased told the accused that she had forgotten something at her employer’s place and requested to rush and pick it. She went but the accused was suspecting her of fidelity, therefore he followed her closely. He saw the deceased with another man hugging and kissing, He hid in a nearby fence, watching keenly the deceased and her lover. When they were done, the deceased started walking only to meet the accused. The accused inquired from her if that was the place she intended to go (to her place of work), she responded “vile umeona”, translated to mean “What you have seen”. They proceeded to the house but her words provoked the accused who picked up a stone and hit her on the back of the head and who later succumbed to the injury. The accused tried to conceal the incident and disappeared. On 25/10/2022, the accused surrendered himself to Kiminini Police Station in Bungoma claiming he was mentally disturbed by the crime he had committed to his wife. Subsequently the accused was charged with the offence of murder which has now been reduced to manslaughter through plea bargain. 10. The applicable law on sentence for the offence of manslaughter is found under the provisions of Section 205 of the Penal Code which reads as follows; ‘Any person who commits the felony of manslaughter is liable to imprisonment for life’ 11. The Section provides for the maximum sentence that is life imprisonment; this court has taken into consideration the aggravating circumstances in that the accused used a a stone in committing the offence; but the facts reveal that the killing was not premeditated; the deceased had lied to the accused that she was going back to her employer to pick something she had forgotten only for the accused to follow her closely and find her kissing and hugging another man. The deceased’s utterances when she was questioned by the accused if that was the place, she had intended to go provoked the deceased who ended up hitting her with a stone at the back of the head leading to the unfortunate state of affairs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14372/eng@2025-05-21 2

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12. The courts are inclined to impose life imprisonment where a deadly weapon was used in committing the offence. The courts are gradually moving away from mandatory sentences and more weight is being given to mitigation and circumstances of the case. 13. The mitigating factors taken into consideration by this court are that the accused readily pleaded guilty and thus saved on judicial time; also taken into consideration are the personal circumstances of the accused that he has also expressed his remorse and is deemed to be a first offender. 14. The Accused, no doubt is now repentant having reflected on his rash action. This case however demonstrates inability to resolve disputes peacefully without allowed anger to take control. 15. This court has had the opportunity to read through the Pre-sentencing Probation Officer’s Report dated 26/2/2025. The same recommends that the environment at the accused’s home is still hostile towards the accused who can only be considered for release on probation at a later date. Both his family and the victim’s family were not willing to receive him at the moment given that the two families have strained relations which are yet to be resolved to avert any imminent threats to his life once he is released. 16. Having considered the Probation Report, the Accused’s and victim’s families’ position in the matter, I am convinced that the Accused should serve a rehabilitative prison sentence and not a probationary one. This is so because it is evident that he needs to be rehabilitated from the mental disturbance he suffered after the incidence and be trained on anger management. He also requires skills to enable him earn a living upon release. 17. This court was also informed that the accused has no known relatives, friends and or any other person who can host and monitor him should he be committed to probation sentence. Attempts by the accused to secure someone to attend court for cross-examination on the capability of hosting the accused should he be committed to non-custodial sentence have been futile. 18. In determining the appropriate sentence, the Judiciary sentencing policy guidelines are instructive. They are not elaborate as to sentences involving manslaughter, but they give a roadmap which courts ought to consider in coming up with an appropriate sentence. 19. The sentencing objectives in Kenya have been captured in the sentencing guidelines 2023 to be the following: a. Retribution: to punish the offender for his/her criminal conduct in a just manner. b. Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences. c. Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person. d. Restorative justice: to address the needs arising from the criminal conduct such as loss and damages. e. Community protection: to protect the community by incapacitating the offender. f. Denunciation: to communicate the community’s condemnation of the criminal conduct. g. Reconciliation: To mend the relationship between the offender, the victim and the community. h. Reintegration: To facilitate the re-entry of the offender into the society. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14372/eng@2025-05-21 3

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20. I have considered the sentencing objectives in totality. The accused person is a young man with a whole life ahead of him and there is need to have him rehabilitated to enable him manage anger issues. 21. In the light of the above factors this court finds that a non-custodial sentence would not be appropriate in the circumstances and shall impose a lenient prison term. The accused is sentenced to five (5) years imprisonment; the period spent in remand to be taken into consideration. Disposition 22. 23. Having taken all factors into consideration, this court makes the following orders: (i) The accused is convicted and sentenced on his own plea of guilty for the offence of Manslaughter; (ii) The accused is sentenced to a term of Five (5) years imprisonment, the term to run from the date of his surrender and or arrest being on 25/10/2022 in accordance with the provisions of Section 332 of the Criminal Procedure Code; Orders Accordingly. SENTENCE WRITTEN, DATED & SIGNED AT MACHAKOS THIS 21ST MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 21ST MAY 2025 In the presence of :Mr. Muema.......... for Accused Ms. Agatha.............. for Prosecution Milly........ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14372/eng@2025-05-21 4

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