[2023] KEHC 23481 (KLR)

Republic v Barmiris (Criminal Case 8 of 2018) [2023] KEHC 23481 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23481 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 8 of 2018

RB Ngetich, J

October 12, 2023

Between

Republic

Prosecution

and

Evans Barmiris

Accused

Ruling

1. The accused Evans Barmaris had been charged with the offence of murder contrary to section 203 and 204 of the Penal Code. Upon hearing both the prosecution and defence, the court delivered judgement on the 24th day of July,2023 finding the accused guilty of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code and convicted him accordingly.

2. The court directed the probation officer to prepare presentence report which was filed on the September 18, 2023.

Pre-sentence Report 3. From the report, the accused worked as a casual laborer before working in midland Hotel in Kabartonjo. In 2009 he moved to Kesses in Eldoret where he engaged in casual labour and it is while in Kesses that he met the deceased where they later moved back to Baringo and started a family.

4. The accused prays for leniency; he highly regrets committing the offence stating that anger got the better of him. He prays for a non-custodial sentence so that he can take care of the children since the victim is no longer there and says if incarcerated, their children will suffer. He states that he has sought forgiveness from the family of the deceased who currently reside in Eldoret.

5. The local administration stated that prior to the offence, the accused was of good conduct; that the offence is highly regretted as it deprived the children of a parent and there has not been any one to provide for the children while accused has been in custody. The accused’s family pray for a non-custodial sentence so that the accused can take care of his children.

6. The deceased’s family indicated that the two families had initially met and agreed on 50,000 and 4 cows as dowry to be paid as compensation, however up to now one cow had been given to them. Their wish is that the two families meet, failure to which they oppose a non-custodial sentence; their wish is also for accused’s family to be taking the children of both deceased and accused to Eldoret so that they can interact with them.

7. The accused’s child aged 13 years on being interviewed indicated that he understands what happened but does not understand why it happened. He however prayed for their father to be released to serve a non-custodial since he was a sole provider. He said they will suffer if they stayed without their father. Social inquiry shows that the brother of the accused has been looking after the children while the accused is in remand but with a lot of strain as he is also maintaining his family.

8. The probation officer officer’s recommendation is for the accused to be sentenced to serve a probation sentence for a period of 3 years during which period, the accused will be guided on anger management and conflict resolution. The probation officer also undertook to follow up on the issue of reconciliation between the accused and the victim’s family to ensure that the accused competes compensation as they had agreed.

Mitigation 9. The defence counsel Mr Kipkulei representing the accused mitigated on his behalf. He submitted that the accused is a young man who is industrious towards supporting his young family; that he is taking care of his children aged between 7 and 13 years and is the sole bread winner after the death of his wife.

10. He stated that the convict is remorseful of the offence and seeks for forgiveness; he regrets the happening on the fateful date. That for the period he has been in custody, he has learned ways of managing anger. He stated that the offence was not premediated/ planned but he found his wife in a compromising position with another man. He sought that he be granted a non-custodial sentence so that he can offer parental responsibility towards the children.

11. Counsel prayed for leniency and urged the court to consider the period he was in remand; that he was arrested on the May 29, 2018 and was released on bond on September 3, 2020.

12. The State Counsel Ms Ratemo submitted that she has gone through the pre-sentence report, that the accused is a first offender and left the matter to the court to exercise its discretion.

Determination 13. Under section 205 of thePenal Code , a person convicted of Manslaughter is liable to imprisonment for life. However, the court has discretion to impose a lesser sentence depending on circumstances of each case. I have considered the accused’s mitigation, the fact that he is a first offender and circumstances surrounding the commission of this offence. I take note of the fact that the accused is husband to the deceased and the incident arose out of anger and rage after the accused suspected his wife the deceased was involved in an illicit affair with another man. I have considered the pre-sentence report filed by the Probation Officer which supports the accused being granted non-custodial sentence.

14. I also take note of the fact that the accused’s family have forgiven him and are willing to help him in raising the victim’s children; that the accused is a young father of two children aged between 7 and 13 years, that he is remorseful and regrets committing the offence. From the report, the community have no issue with the accused serving probation sentence.

15. I also note that accused was in custody from May 29, 2018 upto September 3, 2020 which is a period close to 2 years. I note that he is both a victim and the accused in this matter and his immediate family members and the community have forgiven him. There is no doubt that the death of his wife will haunt him for the rest of his life especially when his children seek answers for his action from him. In my view, the accused require counselling to overcome the trauma and community-based rehabilitation is appropriate as it will benefit the accused and their children.

16. 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 12TH DAY OF OCTOBER 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Kemboi & Mr. Momanyi - Court Assistants.Ms Ratemo for State.Mr. Kipkulei for accused.Accused present.