https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9644

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CRIMINAL CASE NO. 3 OF 2018** **REPUBLIC…………………………………………………………………….PROSECUTION** **VERSUS** **ELPHAS KIPROTICH BIWOTT alias JITU………………………………………ACCUSED** **RULING ON SENTENCE** 1. The accused person, then a young man of about 21 years old, was charged with the offence of murder contrary to **Section 203** as read with **Section 204** of the **Penal Code**. The particulars were that on 2/01/2018 at Merewet Trading Centre in Eldoret East Sub-County within Uasin Gishu County, he murdered one **Jonah Kibet Tanui**. The accused having denied the charge, the case proceed to full trial after which, by the Judgment delivered on 21/11/2025, he was found guilty, and convicted of the offence. 2. Regarding the sentence to be meted out, I directed that a pre-sentence Report be prepared and filed, which was done. The Report, dated 3/03/2026, and prepared by the Probation & Aftercare Service, Uasin Gishu County, indicates that it was compiled on the basis of information obtained from, ***inter alia***, family members of both the accused and the deceased, and also the area Chief. 3. **Mr. Mathai**, Counsel for the accused, in his oral submissions, urged that the accused is presently 29 years old, the second born in a family of 7 siblings, his parents are elderly and thus not able to provide for his younger siblings, and that it is therefore the accused who had been providing the support. He also pointed out that the accused is a first offender, is remorseful, has undergone a programme by the name “***Convicts Journey***” from which he has learnt to be responsible, and that having spent time in remand custody, he has learnt a lot and is now reformed. He urged that his upbringing may have played a part in his social behaviour, and noted that although the Pre-Sentence Report states that the community is not ready to receive back the accused, the final decision is a prerogative of the Court. He submitted that if the accused is to be given a custodial sentence, then the same should not exceed 7 years, and also pointed out that the accused has been in custody since he was arrested in 2018. I note that **Mr. Mathai** had also filed the written Submissions dated 9/02/2026 which however basically simply restates the principles to be applied in sentencing, and reiterates the matters already advanced hereinabove. 4. **Prosecution Counsel** **Ms. Muriithi**, on her part, informed the Court that the accused is a first offender, and urged that although the accused may be a young man, the deceased too, was a middle-aged man with a family which lost him, and has suffered psychologically having been left without a father, and that the wife of the deceased also died due to the trauma. She urged that the circumstances of how the killing should also be considered. **Determination** 1. The applicable law on sentence for the offence of murder is **Section 204** of the **Penal Code** which provides as follows: **“Any person convicted of murder shall be sentenced to death.”** 1. It is now however, generally agreed that in spite of the mandatory language employed by the statute, the Courts nonetheless still retain discretion in sentencing. It is on this basis that in the case of [**Francis Karioko Muruatetu & Another v Republic [**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2)**2017] eKLR**, the Supreme Court declared the mandatory death sentence unconstitutional insofar as it also does not allow for consideration of mitigation. 2. In determining sentence, I take into account the Supreme Court decision in thethe said case of **Francis Karioko Muruatetu & Another v Republic [2017] eKLR)** in which it guided that, in sentencing, the following mitigating factors would be applicable;**(a) age of the offender;****(b) being a first offender;****(c) whether the offender pleaded guilty;****(d) character and record of the offender;****(e) commission of the offence in response to gender-based violence;****(f) remorsefulness of the offender;****(g) the possibility of reform and social re-adaptation of the offender;** and, **(h) any other factor that the Court considers relevant.** 3. Similarly, the Court of Appeal, in the case of [**Daniel Kipkosgei Letting Vs. Republic**](http://kenyalaw.org/caselaw/cases/view/215923/) **[2021] eKLR**, pronounced as follows; **“With regard to the above, we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..”** 1. Further, **Majanja J**, in quoting **Francis Karioko Muruatetu (supra)**,in the case of **Michael Kathewa Laichena & another v Republic [2018] eKLR***,* stated as follows: **“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………”** 1. I have also considered the contents, findings and recommendations of the Pre-sentence Report. The salient observations I make from the Report are that the accused is not remorseful and continues to deny committing the offence. It is reported that the family of the accused has not taken any steps to initiate reconciliation. As for family members of the deceased, they are said to be still in pain which situation has been worsened by the accused’s family’s indifference, and they hope to receive justice from the Court. The local administration did not have much to say about the character of the accused as it is said that he had moved out in search of greener pasture. The Report also does not propose a non-custodial sentence. 2. Regarding the nature of the attack and the extent of injuries inflicted, in the Judgment dated 21/11/2025, I already found as follows: ***“31. In this case, from the evidence tendered in Court, it is clear that the accused person hit the deceased multiple times, using a stick and a pole, and the areas of the body targeted, included, inter alia, the head, and the stomach-chest area. It is evident from the witness testimonies that the accused person repeatedly hit the deceased and PW1 to the extent that they both lost consciousness. It is therefore clear that he was well aware of the impact of the injuries he was inflicting on the deceased. Anyone who uses a weapon of any nature to strike the head and/or any other vulnerable part of the body of another repeatedly, as the accused did in this case, ought to know that the injuries to be suffered out of that act are capable of causing the death of that person. The fact that the accused targeted the head of the deceased, a delicate part, which when attacked in that manner, could easily lead to death, establishes that the accused had, at least at that point, premeditated his actions. To my mind, the above facts and conduct easily establish the existence of “malice aforethought” on the part of the accused person.*** 1. According to the Post-Mortem Report, the cause of death was established to be “***multiple injuries due to assault.”*** The Pathologist testified that the body of the deceased showed a 4 cm laceration on the left side of the skull, 2 cm laceration on the upper part of the left eye region, triple bruises on the forehead and the left side of the face, fracture of the two bones of the left forearm, and multiple bruises on the forearm and hands. He stated further that on dissection of the body, he noted fractures of the 3rd, 4th and 5th right ribs, haematoma in the pelvis (blood in the pelvis), and bleeding on the surface of the brain, and beneath the skin on both arms. The severity of these injuries demonstrates that the accused did not only use force, but executed excessive violence. There being no evidence of any provocation from the deceased, the accused person’s actions were clearly disproportionate and wholly unnecessary, and indicates a total disregard for human life. 2. In the circumstances, I find that a non-custodial sentence would not be appropriate in this case. Although the accused is still a young man of 29 years, with his whole life ahead of him, a human life was lost and the Court must reiterate that it is not acceptable to take a human life extra-judicially, even if unintended, whatever the circumstances or level of provocation. 3. I will therefore impose a prison sentence but since I find no indication that the accused was at any point released on bond or bail since his arrest after occurrence of the incident on or about 14/01/2018, more than 8 years ago, in accordance with the provisions of **Section 333(2)** of the **Criminal Procure Code**, the period he will serve the prison term shall be mitigated by a consideration of the period he has already served in remand custody. **Final Orders** 1. In circumstances, I make orders as follows: 2. I hereby sentence the accused, **Elphas Kiprotcih Biwott alias Jitu**, to serve fifteen **(15) years** imprisonment. 3. In computing the term to be served in prison, the period already spent by the accused in custody during the trial, shall be deemed as already served portion of the prison term. In other words, the period that the Appellant is to serve in prison shall be computed from the date when he was arraigned, namely, 15/01/2018. 4. Right of appeal within 14 days is hereby explained to the accused. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026** **……………..……..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Accused person present physically in Court** | | | **Mr. Rotich h/b for Mr. Mathai the accused** | | | **Ms. Muriithi for the State** | | | **Court Assistant: Brian Kimathi** | |