[2022] KEHC 17014 (KLR)

Kiprono & another v Republic (Miscellaneous Criminal Application 8 of 2019) [2022] KEHC 17014 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17014 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Criminal Application 8 of 2019

RL Korir, J

November 9, 2022

Between

Geoffrey Cheruiyot Kiprono

1st Applicant

Mary Mateb Chepkwony

2nd Applicant

and

Republic

Respondent

((Muya J) Criminal Case 18 of 2016 )

Ruling

1. The applicants, Geoffrey Cheruiyot Kiprono and Mary Mateb Chepkwony were charged with murder contrary to section 203 as read with section 204 of the Penal Code. At the end of the trial, this court (Muya J) convicted the applicants and sentenced them to death.

2. Being aggrieved with the conviction and the sentence, the applicants lodged an appeal to the Court of Appeal in Nakuru in Criminal Appeal No 73 of 2017. The applicants thereafter sought to withdraw the appeal and the same was granted by an order of the Court of Appeal dated March 30, 2022.

3. What is before this court is the applicant’s application filed on June 4, 2019 where they seek resentencing.

4. The applicants stated that the Supreme Court in the Francis Karioko Muruatetu case had declared section 204 of the Penal Code unconstitutional as it denied the trial court the legal discretion to pass fitting sentences. That this had now untied the hands of the judicial officers as they could now exercise full judicial discretion.

5. The 1st applicant stated that he attacked the deceased and that his mother (2nd applicant) came to separate them, she found that he had already attacked and killed the deceased. the 2nd applicant confirmed the same.

6. The applicants submitted that they acknowledged that they caused pain to the victim and his family and they asked for forgiveness. That they were full of regret and that they had learnt their lesson. The 1st applicant stated that he commited the offence under the influence of alcohol and hard drugs. The 2nd applicant asked the court to look at her advanced age and intervene so that she could go and work for the remainder of the years that God grants her.

7. The applicants stated that they have never had any indiscipline issues while in prison. The 1st applicant stated that he had used his time in prison well and had developed skills. The 2nd applicant stated that she attended bible studies only as she was too old to learn any skill while in prison.

8. The prosecution submitted that as much as this court had discretion to vary the death sentence, this was not the appropriate case to do so. That the circumstances of the murder were so aggravated that the 1st appellant did not deserve any leniency. With regard to the 2nd applicant the prosecution submitted that they were not opposed to her being availed the mercy of the court at the court’s discretion.

9. It was the prosecution’s submission that in the first instance, the 1st appellant was so contemptous of the law when he chased away law enforcement officers who had gone to arrest him on August 1, 2016. That in the 2nd instance, the 1st accused cut the deceased severally with a panga while the deceased was injured and laying on the ground. The prosecution further submitted that the 1st accused then chased away the assistant chief and his nyumba kumi people. That the injuries inflicted upon the deceased were so multiple and severe, the 1st accused could not plead instateneous action.

10. In the case of Suleiman Shabhal vs Independent Electoral and Boundaries Commission & 3 others (2014) eKLR, while explaining the relief of resentencing, the Court of Appeal observed that:'It is an established principle of law that the relief sought ought to be granted cautiously and sparingly, most judiciously and ensuring the supremacy of the constitution is not eroded.'

11. The Supreme Court of Kenya in Francis Karioko Muruatetu & Another vs Republic, Petition No 15 & 16 [Consolidated] Of 2015, directed that in re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court:-'(71)To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a (re-hearing) sentence for the conviction of a murder charge:-i.The age of the offenderii.Being a first offenderiii.Whether the offender pleaded guiltyiv.Character and record of the offenderv.Commission of the offence in response to gender-based violencevi.The manner in which the offence was committed on the victimvii.The physical and the psychological effect of the offence on the victim’s familyviii.Remorsefulness of the offenderix.The possibility of reform and social re-adaptation of the offenderx.Any other factor the court considers relevant'

12. The Supreme Court proceeded to hold that; -(viii)Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re- sentencing.(ix)These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.'

13. Applying the above legal principles to the facts in the present case here, it is clear from the trial court’s record that the petitioners mitigated in the trial court and that the court indeed noted the said mitigation. Nonetheless the trial court sentenced the petitioners to suffer death as provided by the law.

14. In mitigation, the 1st applicant stated that he was a first offender and that he was now old enough to make sound decisions. That he was not maried at the time of the incident and that his siblings and father depended on him.

15. The 1st applicant stated that he would never be found again in conflict with the community and if given a second chance, he would make good decisions and do what is acceptable to the society.

16. The 2nd applicant stated that while in custody, she did not break prison rules and regulations. That she spent her time constructively by reflecting and improving herself. It was her further mitigation that she was 69 years of age and asked the court to give her a second chance.

17. This court (Muya J) rendered a reasoned judgment in which he found that on the material day, the 2nd accused hit the deceased on the head and while he lay on the ground injured, the 1st accused attacked him with a panga cutting him up. This happened a day after a failed raid on illicit brew in the applicants’ home where both accused persons became hostile to the nyumba kumipeople and the local administration.

18. With respect to the injuries suffered by the deceased, the court stated as follows:-'Post mortem examination was performed by Dr Mutai (PW9) at Longisa District Hospital. His observations were that the body had multiple cut wound on the posterior cervical region measuring 13cm long, left temporal region measuring 19cm long left anterior cervical region 13cm long, small cut wound frontal region 3cm long, cut wound on left leg.There was a left superficial and deep cut on the jugular and carotid arteries.A deep cut wound on the temporal region exposing white matter. There was fracture of the cervical column at C5 and C6. Dislocation of the cervical cord at C5 and C6. He formed the opinion that the cause of death was cardio pulmonary arrest secondary to hyproxia severe head injury due to distorted brain matter.From the above doctors findings it is abundantly clear that there were numerous cut wounds at the head severing the jugular and carotid arteries and exposing white matter on the left temporal region. The person or persons who inflicted such wounds had only one intention in mind, to cause grevious harm to cause death.'

19. This court called for a social inquiry report in respect of each applicant. The same was filed on September 27, 2022. It stated that the family of the deceased was still bitter over the death of the deceased. In particular, that the deceased’s wife was said to have become exteremely wild to the extent of losing her mind. She was bitter that the death of the husband had left her struggling to make ends meet to support their nine children while she had no source of income.

20. The report stated that family of the 1st accused wanted him released so that a cleansing ceremony could be conducted as per their culture. That the brother to the deceased wanted reconciliation to be done as soon as possible to prevent more deaths in the family.

21. According to the probation officer, the local administration stated that there was need for the two families to meet and decide on the way forward. That there was a time the two families met but they could not find a solution as the wife of the deceased was still bitter and hostile.

22. The report stated that the deceased was the uncle of the 1st accused and that there were no grudges between them. That the home environment was not conducive as the wife to the deceased was still bitter and emotional. The report also stated that the 2nd applicant was an elderly woman who was remorseful. The report recommended that the court exercise its discretion in the resentencing.

23. The general principles in sentencing were set out in the Criminal Procedure Bench Book at page 114 -115 as follows:-i.Proportinalityii.Equality/uniformity/parity/consistency/impartialityiii.Accountability/transparencyiv.Inclusivenessv.Respect for human rightsvi.Adherence to domestic and international law with due regard to recognized international and regional standards on sentencing.

24. Page 116 of the Criminal Procedure Benchbook at paragraph 4. 1 list the objectives of sentencing as:-retribution,deterrence,rehabilitation,restorative justice,community protection, and denunciation.

25. I have considered the circumstances of the offence, the principles of resentencing set out in the Muruatetu case, (Supra) the mitigation from the accused persons and the probation officers report. I have not doubt that both the 1st and 2nd applicants are remorseful. They have submitted that they are transformed and I have no reason to doubt them. I have also considered that their clan members were willing to have them back home so as to undertake traditional reconciliation cleansing processes. The offence however, is a serious one and calls for a deterrent sentence. It is aggravated by the fact that the 2 applicants were heartless and merciless in the manner in which they assailed and killed the victim. It is also aggravated by the fact that the victim and his company were on a law enforcement mission.

26. I will factor in the period spent by the accused persons in pre-trial custody as required by law. In the case of Bethwel Wilson Kibor vs Republic (2009) eKLR, the Court of Appeal held that:-'By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody'.(See Criminal Procedure Bench Book at page 122, paragraph 45)

27. In the end I render sentence as follows:-i.For the 1st applicant, Geoffrey Cheruiyot Kiprono, I set aside the death sentence and substitute therefore a term of 25 years’ imprisonment to run from August 1, 2016 being the date he was first arrainged and placed in pre-trial custody.ii.For the 2nd applicant, Mary Mateb Chepkwony, I set aside the death sentence, and for reason of her advanced age, substitute therefor a prison term equivalent to the period already served in both pre-trial custody and in subsequent imprisonment. She is released to serve 3 years’ probation during which period she shall participate in and promote reconciliation with the victims.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 9TH DAY OF NOVEMBER, 2022. R LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for the State, the 1st and 2nd Applicants present (acting in person) and Kiprotich (Court Assistant)