[2023] KEHC 25629 (KLR)

Republic v Barchiba (Criminal Case 58 of 2023) [2023] KEHC 25629 (KLR) (15 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25629 (KLR)

Republic of Kenya

In the High Court at Eldama Ravine

Criminal Case 58 of 2023

RB Ngetich, J

November 15, 2023

Between

Republic

Prosecution

and

David Kiprotich Barchiba

Accused

Sentence

1. The accused David Kiprotich Barchiba 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 night of 21st and August 22, 2015 at Olkokwe village in Mogotio Sub- County within Baringo County murdered Samuel Kibiwott.By the judgement delivered on the 27th day of July,2023, the accused was found guilty and convicted him accordingly.

2. Under section 204 of Criminal Procedure Code, penalty for the offence of murder is mandatory death sentence. However, in the case of Francis Muruatetu &anothervRepublic [2017] eKLR, the supreme court declared death penalty mandatory nature was unconstitutional. The supreme court stated as hereunder: -“45. To our minds what section 204 of the Penal Code is essentially saying to a convict is that he or she cannot be heard on why in all the circumstances of his/her case. The death sentence should not be imposed on him or her, or that even if he or she is heard, it is only for the purposes of the record as at that time of mitigation because the court has to impose the death sentence nonetheless, as illustrated by the foregoing Court of appeal decision. Try as we might we cannot decipher the possible rationale for this provision. We think that a person facing the death sentence is most deserving to be heard in mitigation because of the finality of the sentence.

46. We are of the view that mitigation is an important congruent element of fair trial. The fact that mitigation is not expressly mentioned as a right in the Constitution does not deprive it of the necessity and essence in the fair trial process. In any case, the right pertaining to fair trial of an accused pursuant to article 50 (2) of the Constitution are not exhaustive.”

The court therefore proceeded to pronounce itself thus:“58. We now lay to rest the quagmire that has plagued the court with regard to the mandatory nature of section 204 of the Penal Code. We do this by determining that any court dealing with the offence of murder is allowed to exercise judicial discretion by considering any mitigating factors in sentencing an accused person charged with and found guilty of that offence. To do otherwise will render a trial, with the resulting sentence under section 204 of the Penal Code unfair thereby conflicting with article 25(c), 28, 48 and 50(1) and (2) (g) of the Constitution."

3. In view of the above, the court called for pre-sentencing report before the mitigation by accused which will assist the court in determining appropriate sentence.

Pre-sentencing Report 4. The pre-sentence report was filed on the October 16, 2023. From the report, the accused was born in 1992; he dropped out from school at class seven due to school fees and started doing casual jobs until the time of his arrest. He is not married.

5. The accused regrets killing the deceased who was his father in-law. He is remorseful and seeks forgiveness from court. He pleads for lenient sentence and intends to approach deceased’s family to ask for forgiveness. The area administrator indicated that there was no record of criminality in the family.

6. The deceased’s family members indicated that the accused’s family sought forgiveness and the victim’s family have forgiven the accused who was a great friend to the deceased. They say the two families have met for reconciliation process and hope to have more meetings to ensure that they live in harmony. The deceased’s brother-in-law stated that the family has no issue with the accused and have no objection if granted a non-custodial sentence. The area chief is aware of the reconciliation and is ready to support them whenever required.

7. The community members interviewed indicated that the accused is a good person who blends well with the family and community and the community has no issue with him and have forgiven him. The area administrator confirmed that the accused has good ties with the community and they are ready to accept him back.

8. The probation officer indicates that in view of the above sentiments and having considered all the facts raised, it is their view that the accused be considered for a non-custodial sentence for maximum period subject to the Honourable court’s discretionary powers.

Mitigation 9. The defence counsel Mr Kipkulei mitigated on his behalf. He submitted that the convict is a young man aged 31 years and at the time of the commission of the offence, he was 23 years old. That the convict is remorseful and blames the deceased for provoking him; that he did intend to harm him.

10. Counsel submitted that the family of the deceased and convict have started reconciliation process and the deceased’s family are willing to forgive the accused. He submits that the accused is asking for forgiveness from the court and to all those he offended. He submitted that the convict is willing to go back to the society and build the nation and seeks to be granted a non-custodial sentence since he has been in custody since 2015. He urged court to consider the period he has been in custody be factored in during sentencing.

Determination 11. I have taken into consideration accused’s/convict’s mitigation through his advocate. I have also considered sentiments by the victim’s family, local administration and the community. I take note of the fact the deceased was convict’s brother in-law and both were drunk at the time of the incident. From accused’s mitigation, the deceased provoked him. He was not able to control himself and he inflicted fatal injuries on the deceased which he now regrets. I take note of the fact that the family of the deceased and accused have reconciled. This has been confirmed by presentence report. The victim’s family, local administration and community are not opposed to convict being place on probation. I also take note of the fac that accused has been in remand for 7 years.

12. In view of the above, I am inclined to impose non-custodial sentence.

Final Orders: -1. Accused placed on probation for a period of 3 years

2. Right of Appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 15TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGE