[2023] KEHC 26069 (KLR)

Republic v Biwott (Criminal Case E010 of 2021) [2023] KEHC 26069 (KLR) (30 November 2023) (Sentence)

Neutral citation: [2023] KEHC 26069 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case E010 of 2021

RB Ngetich, J

November 30, 2023

Between

Republic

Prosecution

and

Kelvin Kibos Biwott

Accused

Sentence

1. The accused Kelvin Kibos Biwott had been charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars of the charge being that the accused on the 10th day of March, 2021 at Eldume village in Elchomus Sub-location in Baringo South within Baringo County, the accused murdered one Irene Barsire.

2. The charge and its full particulars were was read over and explained to the accused who denied the charge and plea of not guilty was entered. The matter was set down for hearing. However, when the matter came up for Hearing on the 10th July, 2023, the accused informed the court that he had sent a request for plea bargain. Again, on the 18th July, 2023, Mr. Mwaita representing the accused informed the court of their request for plea bargaining which was confirmed by the prosecution.

3. The plea agreement was duly executed and the charge reduced to manslaughter contrary to section 202 as read with section 205 of the Penal Code. The charge and its full particulars were read over and explained to the accused who pleaded guilty and was convicted on his own plea of guilty.

Brief Facts of the Case 4. On 10th day of March, 2021, Maurine Sauroki got information from the accused herein Kevin Biwott Kibos who was the husband of the deceased that his Wife had passed on. The accused informed her that he suspected that his wife took hot chang'aa and that could have caused her death. Maurine immediately informed her husband Nathaniel Sauroki that her brother's wife has passed on, who then informed the Area Assistant Chief that there was a dead person near his home. The Assistant Chief who did not have means of transport requested Nathaniel to go and pick the deceased using a motor bike.

5. They went to the scene and on the Assistant Chief touching the body of the late Irene Barsire, he noticed that she was no more; he called Deputy OCS Marigat, IP Francis Mutuva who went to the scene with his team and documented the scene. The police officers found the assistant chief and the accused Kevin Biwott Kibos who tried preventing them from entering the room while asking them if they are doctors. The body was found covered with Maasai Lesso. On examination of the deceased's body they found that she had some injuries on the head around the neck, face and on the right thigh. The body was also lying on wet soil showing that someone washed blood on her. In the house, a panga, a walking stick stained with blood was also recovered.

6. The bed showed that there was a struggle on the bed and the window had cracks showing that it was forced to open either by pulling or pushing. They saw a pink plastic basin which had soaked clothes inside suggesting someone was trying to wash them since it had traces of blood at the sitting room where the deceased's body was lying. Postmortem done revealed that the cause of death was multiple soft tissue injuries due to blunt force trauma following assault.

7. Upon investigations, it was determined that the accused person used force to break into the house through the window and a fight ensued between him and the deceased with deceased sustaining multiple injuries. That the accused raped the deceased herein and hit her head resulting in her death.

Pre-Sentence Report 8. Presentence report was filed on the 22nd November, 2023. From the report, the offender attended Eldume Primary School and attained 399/700 and proceeded to Rosoka High School in Eldama Ravine. He dropped out while in form 2 due to financial constraints within the family. After dropping out of school in 2005, he started engaging in farming on their family Land and he was doing so until the time of his arrest. He got married to one Brenda Machali in the year 2008 and they are blessed with 2 children namely Dennis Kiplagat who studies at Sacho High School on a scholarship and Luvton Kibor who sat for his KCPE this year. The accused later married a second wife, the deceased herein and they were blessed with one child by the name Kiptoo who is currently living within his maternal grandmother in Rabai.

9. Social inquiry however reveals that the offender and his first wife separated in 2013 with the first wife moving back to her parent's home where she has lived since then while co-parenting with the accused but she has never gone back to the offender's house. Social inquiry further reveals that the offender has an alcoholism problem and was under the influence of alcohol when an argument arose leading to a fight.

10. The assistant chief described the accused as being of good behavior prior to his arrest with his only problem being alcoholism. The village elder, who is also a neighbor, on his part described the accused as being a drunkard and described the relationship between the offender and the victim as husband and wife but with frequent bouts of domestic violence although they would eventually resolve their differences. He said on this particular incident the domestic violence got out of hand leading to the death of the victim. The assistant chief and the village elder did not oppose a non-custodial sentence stating that the offender has a chance to be rehabilitated within the community since his main problem was alcoholism.

11. The accused prays for forgiveness from the court and the family of the victim and urges court to impose a non-custodial sentence saying it will enable him to continue providing for his children. He submits that he is a first-time offender and his family are in the process of seeking forgiveness and reconciliation with the victim's family but social inquiry shows this is yet to happen. The sister of the accused prayed for forgiveness on behalf of her brother stating that he should be considered for a non-custodial sentence so that he can resume his parental duties. She said that although they know the family of the victim, they are yet to seek forgiveness from them but if the offender is sentenced to serve a non-custodial sentence, they will be able to seek forgiveness the traditional way. The ex-wife of the offender on her part stated that the offender had been a good father although even their union was marred by domestic issues but they have been co-parenting well

12. The father of the victim expressed bitterness towards the offender and by extension the offender’s family stating that while the offence took place in 2021, neither the offender nor a representative of his family has ever approached them for reconciliation. They are of the view that the offender is not remorseful and urges court to impose to custodial sentence.

13. The probation officer’s view is that the fact that the family of the victim are still bitter and no efforts to seek forgiveness and reconciliation have been done and the history of domestic violence as exposed through social enquiry the offender is not suitable for a non-custodial sentence.

Mitigation 14. The defence counsel Mr. Mwaita mitigated on his behalf. He stated that the convict is aged 37 years old and married to two wives the 2nd wife being the deceased herein. That the accused is remorseful, that he did not intend to kill the deceased and seeks forgiveness from the court and from the family of the deceased. Counsel submit that the accused is a first offender, a total orphan and he has been in custody since 10th February, 2021. He prayed that the court considers the period the accused has been in custody.

15. Counsel submit that the convict’s uncle had made arrangement to take 3 cows to the deceased’s home and he is willing to reconcile with the family of the deceased who are his in-laws. He submitted that from the pre-sentence report, the accused has not reconciled with the family of the deceased which might have been contributed by the fact that he is an orphan and given opportunity, he will reconcile with the family of the deceased. That the family relies on the accused and prayed for a lenient sentence.

16. The prosecution counsel Mr. Abwajo submits that he would wish to bring to the attention of the court the prevailing situation emanating from domestic violence which has become a scotch in the society leaving families disintegrated, spouses maimed and worse of the situation being either of the spouse being killed. That no matter what extend of sentence the court pronounces itself in, the same will not be able to bring the deceased back to life. That as the prosecution, their concern is not how much the sentence will do to the convict but the message the sentence will send to the community at large.

17. Counsel submits that this court is seized with opportunity to communicate and to do so firmly; that domestic violence has to be stopped at whatever cost. He associated himself with the probation officer’s report that non-custodial sentence will not serve the purpose of this case and it is their view that deterrent sentence will serve the ends of justice. He sought for a maximum available sentence to be meted against the accused.

Determination 18. Under section 205 of the Penal Code a person convicted of Manslaughter is liable to imprisonment for life, however the court in Malindi Criminal Appeal No. 12 of 2021 between Julius Kitsao Manyeso vs Republic declared life imprisonment unconstitutional. The Court has discretion to impose determinate sentence depending on circumstances of each case.

19. I have considered the fact that the convict is a first offender. The accused is remorseful and regrets the offence. From presentence report, the accused committed the offence while under the influence of alcohol. I take note of the fact that the family of the accused and the family of the deceased are yet to reconcile. In my view the offender deserves custodial sentence so as to deter other would be offenders from involving themselves in gender-based violence; while in custody the offender will also benefit from anger management skills and he will also be kept away from indulging in alcoholism which contribute to commission of the offences such as this.

20. I take note of the fact that accused has been in custody since 10th February,2021 a period close to 2 years, 8 months.

21. Final Orders: -1. Accused to serve 20 years imprisonment.2. Period served in remand to be reduced from sentence above.3. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KABARNET THIS 30TH DAY OF NOVEMBER, 2023. RACHEL NGETICHJUDGEIn the presence of:Mr. Momanyi & Mr. Elvis – Court Assistants.Accused present.Mr. Mwaita for Accused.Mr. Mongare for State.