Republic v Nganda & another (Criminal Case E009 of 2023) [2025] KEHC 19502 (KLR) (10 December 2025) (Ruling) Neutral citation: [2025] KEHC 19502 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CRIMINAL CASE E009 OF 2023 LW GITARI, J DECEMBER 10, 2025 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND HARRISON MBATHA NGANDA ....................................................... 1ST ACCUSED KYALO MWANTHI .............................................................................. 2ND ACCUSED RULING 1. The accused person Harrison Mbatha Nganda was arraigned in this court and charged with the offence of murder contrary to Section 203 as read with Section 204 of the Criminal Procedure Code. The particulars of the offence are that on the night of 28th January 2023 at around 2100hours at Makutano Township Kanyongoyo Sub-Location in Lower Yatta Sub-County within Kitui County, jointly with a common intention with others not before the court murdered one Harrison Mavinya Ndungo. 2. The accused person denied the charges. Subsequently the accused person entered a plea-bargaining agreement with the state and the charge of murder was substituted with a lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code to which he pleaded guilty and he was convicted. 3. This matter was at the stage of sentencing and the court called for a probation officer’s report to guide the court on the sentencing. The report was filed but with some amount of delay. The court had to summon the probation officer to come to court and explain the delay. 4. Upon the report being filed in court, the victims opposed the pleas bargain and stated that they were not interviewed in order to give their views before the court could pass the sentence. In particular the wife of the deceased went to the probation office and stated that she was not visited. On the other hand, the counsel for the accused informed the court that the victims were never visited and his client was not consulted. He further told the court that they were faulting the plea-bargaining agreement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19502/eng@2025-12-10 1
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5. I have considered the issues raised by the parties herein. I have also considered the report filed in court by the probation officer. The issue is whether the court should receive the views of the victim before the sentence is pronounced. The participation of the victims of crime is paramount in criminal trials and the court should consider their views in when making its decisions. The Constitution underpins the need to have the victims being given equal status in proceedings. 6. Article 159(2)(a) of the Constitution of Kenya 2010 provides as follows: “ In exercising Judicial Authority, the courts and tribunals shall be guided by the following principles – a. 7. Justice shall be done to all, irrespective of status.” The courts in criminal cases must therefore consider the matters touching on the accused person as well as the victim in its quest to do justice. Article 50(9) of the Constitution provides: “ Parliament shall enact legislation providing for the protection, rights and welfare of victims of offence.” The Victims Protection Act No. 17 of 2024 gives effect to Article 50(9) of the Constitution. 8. In Joseph Lendrix Waswa -vs- Republic (2020) eKLR where the Supreme Court recognized the need to protect victims in criminal trial and rendered itself as follows: “ The emerging picture therefore, is that criminal justice process should empower victims and that their voices should be heard – not only as witnesses for the prosecution but as rights holders with a valid interest in the proceedings and the outcome of the cause…. A victim can participate in a trial in person or via a legal representative. So, then who determines the manner and extent of a victim’s participation in the trial. Once a victim or his legal representative makes an application to participate in a trial, it is the duty of the trial court to evaluate the matter before it, consider the victims views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, in the Judge’s discretion determine the extent and manner in which the victim can participate in a trial. Since participatory rights are closely related, the rights of the accused and the right to a fair trial and expeditious trial, they should be granted in a judicious manner which does not cause undue delay in the proceedings and thus prejudice the rights of the accused.” 9. The Supreme Court at Para 77 outlined the parameters of the victim’s participation in criminal trials as follows: a. The applicant must be a direct victim’s legal representative in the case being tried by the court. b. The court should examine each case according to its special nature to determine if participation is appropriate at the stage participation is applied for. c. The trial Judge must be satisfied that granting the victim participatory rights shall not occasion an undue delay in the proceedings. d. The victim’s presentation should be strictly limited to the “views and concerns” of the victim in the matter granted participation. e. Victims participation must not be prejudicial to or inconsistent with the rights of the accused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19502/eng@2025-12-10 2
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f. The trial Judge may allow the victim or his legal representative to pose questions to a witness or expert who is giving evidence before the court that has not been posed by the prosecutor. g. The Judge has control over the right to ask questions and should ensure that neither the victim nor the accused are subjected to unsuitable treatment or questions that are irrelevant to the trial. h. The trial court should ensure that the victim or the victim’s legal representative understands that prosecutinal duties remain with the DPP. i. While victim’s views and concerns may be persuasive, and no doubt in the public interest, that they are acknowledged, these views and concerns are not to be equated with public interest. j. The court may hold proceedings in camera where necessary to protect the privacy of the victims. k. While the court has a duty to consider the victim’s views and concerns, the court has no obligation to follow the victim’s preference of punishment. 10. Based on these guidelines, I find that it is in the interest of justice that the court receives the views of the victims in the pre-sentence social inquiry report. By so doing the court will ensure the participation of the victims in sentence as the sentencing process is part of the trial in a criminal trial. 11. In this matter the Probation Officer has informed this court that the wife of the victim went to her office and informed her that she was not interviewed by a probation officer. I have perused the said report which was filed in this court, although it has stated the victim’s sentiments, they replicate a prebail report which was filed in court on 5/7/2023. The report further faults the prosecution for not receiving the views to the victims before entering a plea agreement with the accused. 12. For these reasons I find that it would be a violation of the Constitution for failing to receive the views of the victim in the plea agreement and in the pre-sentence report. 13. I order that: 1. This court shall receive the views of the victim’s family. 2. The views shall be received from the wife of the deceased or her legal representative. 3. The matter shall be mentioned and summons shall issue to the deceased wife to come to court and give her views. DATED, SIGNED AND DELIVERED AT KITUI THIS 16TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19502/eng@2025-12-10 3
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