REPUBLIC OF KENYA IN THE HIGH OF KENYA AT MACHAKOS CRIMINAL CASE NO. E008 OF 2023 REPUBLIC……….......................DIRECTOR OF PROSECUTIONS PUBLIC VERSUS DAVID MUTISYA ACCUSED NDUNGE alias MUNYENDI……....………… JUDGEMENT ON SENTENCING 1. The accused David Mutisya Ndunge alias Munyendi was initially charged with the offence of murder Contrary to section 203 as read with section 204 of the Penal Code and by a plea bargain agreement entered into between the accused and the prosecution and accepted and recorded in Court on 17th day of March 2026. The said charges were reduced to manslaughter contrary to section 202 as read with section 205 of the Penal code. The particulars of which were that on the 3rd day of February 2023 at Muti Umwe Village, Kaliambeu Sub-location of Muthetheni Location, Mwala Sub-County within Machakos County unlawfully caused the death of Mary Mueni Mulembi. 2. He pleaded guilty to the said charges, the fact of which were that on 3rd day of February 2023 the deceased Mary Mueni Mulembi reported home from a funeral ceremony and found her mother-in-law DI at home alone. The deceased then opted to proceed and untether goats from the grazing area where she had tied them during the day but she did not come back home with the goats. Instead, the goats were driven home by the Accused person herein. DI inquired from the accused as to the whereabouts of the deceased and the accused claimed that the deceased had proceeded to where people go and they don’t come back 1
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again on earth which left DI wondering what could have happened to the deceased. The accused then came back with the calves which were also tethered by the deceased and when DI asked him where the deceased was, he repeated the same thing that the deceased had gone to where people go and don’t come back. DI mobilized the neighbours and she informed them what the accused had told her. They became suspicious and they demanded the accused does produce the deceased. The accused led them into a small bush where the deceased had earlier tethered the goats and calves and the accused pointed to them where the deceased’s body was lying lifeless within the bush. The accused also led them inside his house where he showed them a panga which he used to slit the deceased’s throat. The matter was reported to the police. The scene was visited and documented. The deceased was found at the scene with a sharp and deep cut at the back of the head and several other cuts on the hands and both legs. A panga with blood stains was also retrieved as an exhibit. 3. A post mortem was conducted on 7th February 2023 and as a result of the examination, the doctor formed the opinion that the cause of the deceased’s death was cervical spine injury due to deep cut wound on the neck. 4. Subsequently the accused was charged with the offence of murder which has now been substituted with manslaughter through plea bargain. 5. In mitigation, the accused through his Advocate Mr. Nagwere filed written mitigation dated 7 th April 2026 submitted that the accused herein voluntarily changed his plea from murder to manslaughter and pleaded guilty at the earliest opportunity once the charge was substituted. The accused demonstrates acceptance of responsibility, genuine remorse for the unfortunate incident and 2
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willingness to save the court’s time and judicial resources. The Courts have consistently held that a guilty plea is a mitigating factor deserving leniency. Reliance was placed on the case of R vs. TWG (HCCR No. 42 of 2017, eKLR where the court imposed a 5 years imprisonment after considering the circumstances of the commission of the offence and inclination of the court towards leniency where malice aforethought is not established. 6. It was submitted that the offence occurred under highly unusual and extraordinary circumstances. The accused genuinely believed that he was confronting a wild animal (a wolf) that posed an imminent danger to his property (a goat). The incident happened spontaneously while the accused was up a mango tree, and there was no premeditation whatsoever. Upon acting the accused immediately realized, to his shock. That it was actually a person, in fact his uncle’s wife. This points to there being no malice aforethought. It was pure mistaken belief of imminent danger. The reaction was made in panic and confusion, not criminal intent. Even in serious offences like this one, courts have imposed modest custodial sentences where circumstances justify leniency. 7. The counsel for the accused further submitted that manslaughter lies in the absence of intention to kill. The accused herein did not set out to harm any human being. His actions were driven by a mistaken perception of threat which should significantly reduce his moral blameworthiness, reference was made to Criminal Appeal No. 3 of 1980 where the appellant who pleaded guilty to manslaughter was to serve 4 years imprisonment. 8. That the personal circumstances of the accused are that he is a first offender with no previous criminal records whatsoever. The accused has been co-operative throughout the proceedings since being arraigned in court to date, a 3
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period of 3 years now. The accused has shown deep regret and psychological distress following the realization of what transpired. The accused is a productive member of the society capable of reform. The accused proposes a sentence of three (3) years as per the plea agreement. 9. It is also submitted that the accused is a suitable candidate for a non-custodial sentence or a reduced custodial sentence term. This court was urged to consider the period already spent in custody pursuant to the provisions of section 333(2) of the CPC. Reference was made to the decision in HCCR No. 26 of 2012 R-vs- Benard Kipngeno Mibei. 10. This court has considered the cases cited by Counsel for the accused in the mitigation submissions and it finds the same to be distinguishable to the present case in so far as the circumstances under which the deaths of victims in those cases happened. 11. The prosecution availed in court the victim impact assessment report dated 14th day of March 2026 which shows that the accused person and the deceased were blood relatives. The accused person was a nephew to the deceased. According to this report, the ground is still hostile. The deceased’s family were shocked and are still in shock with the dreadful incident. They believe that the accused had no reason to kill the deceased, especially in the manner he did. The deceased’s family also stated that the deceased used to operate a kiosk business which used to supplement the income in the home and since her death, things have been tough in making ends meet. The deceased was the care giver of the home and now the home has no life and is desolate. The accused and deceased’s family relationship has been strained because of the incident and they don’t see eye to eye. They don’t even visit each other. They have never had any meeting to 4
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discuss the incident and reach a possible resolution or reconciliation. 12. The family of the victim/deceased are aware of the plea bargain process between the state and the accused person the same having been explained to them by the Prosecution Counsel in this case. The victim’s family seeks for justice over the deceased’s death. The victim’s family urges the court to look at the law and impose a sentence that is commensurate with the law. 13. Ms. Agatha Abang, the prosecuting counsel, stated that the state appreciated the accused for agreeing to undertake the plea bargain. She had discussions with the family of the victim who were not amenable to the plea bargain and made their views in the victim impact assessment report presented hereinabove. 14. The accused person and the state having reached a plea bargain agreement, which this court has had the opportunity to peruse through it. 15. Although the accused in his mitigation submitted that he genuinely believed that he was confronting a wild animal (a wolf) that posed an imminent danger to his property (a goat), this version of his story did not feature in the plea bargain agreement and this court considers the same to be an afterthought. The manner in which the accused murdered the deceased was so inhumane, gruesome and cruel. The same can be compared to a banana trunk being cut down by a machete. 16. I have looked at the post-mortem report produced in evidence by the prosecution as PExhibit.1 and the same confirms that the cause of the deceased’s death was cervical spine injury due to deep cut wound on the neck. 5
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17. At this juncture, this court is being called upon to impose a sentence that is commensurate with the law against the accused person for the offence of manslaughter in the instant case. 18. The Sentencing Policy Guidelines 2023 outlines the objectives of sentencing at paragraph 1.3.1 as follows: Sentences are imposed to meet the set out sentencing objectives. There will be instances in which the objectives may conflict with each other, in so far as possible, sentences imposed should be geared towards meeting the objectives in totality. 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 condemnation of the criminal conduct. 6 community’s
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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. 20. I have considered the sentencing objectives in totality, the nature of the offence, its circumstances, the plea bargain agreement, the victim impact assessment report, mitigation, the period the accused has been in remand, the age of the accused and the fact that the accused saved judicial time by pleading guilty upon entering into the plea bargain agreement. The accused also acknowledges his mistake and demonstrates acceptance of responsibility and genuine remorse for the unfortunate incident. Disposition 21. Having taken into consideration the facts and circumstances leading to the death of the deceased herein, the victim impact assessment report, the mitigation submissions and bearing in mind that sentencing is at the discretion of the court with the maximum sentence for manslaughter being life imprisonment. This court makes the following orders: (i) The accused is convicted and sentenced on his own plea of guilty for the offence of Manslaughter contrary to section 202 as read with section 205 of the Penal Code (Cap.63) Laws of Kenya; (ii) The accused person DAVID MUTISYA NDUNGE alias MUNYENDI is sentenced to twenty (20) years imprisonment. The sentence is to run from the date the accused was first arraigned in court which is on 13th February 2023 7
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pursuant to the provisions of Section 333(2) of the CPC. (iii) The convict has a right of appeal on the sentence within 14 days. It is so ordered. This file is closed. SENTENCE DATED, SIGNED & DELIVERED VIRTULLAY ON TEAMS AT MACHAKOS THIS 25TH JUNE 2026 NOEL I. ADAGI JUDGE In the presence of: Mr. Muteti h/b for Mr. Nagwere for the Accused Ms. Abang for the State 8
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