[2013] KEHC 4254 (KLR)
The court found that, despite the accused's mitigation and claims of remorse, the evidence demonstrated premeditation and a breach of trust as a father. However, following the principle established in Godfrey Ngotho Mutiso v R, the death penalty is not mandatory, and the court has discretion to impose a lesser...
Source-derived case information.
- Citation
- [2013] KEHC 4254 (KLR)
- Parties
- Respondent: Republic of Kenya; Accused: Charles Kiptum Tuwei
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 27 of 2007
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- Accused sentenced to thirty years imprisonment, with period spent in custody to be considered. Right of appeal within fourteen days.
- Judges
- AW Macharia
- Legal Topics
- Sentencing Principles, Mitigation, Murder, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Respondent
Charles Kiptum Tuwei
Accused
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused should be sentenced to death or given a custodial sentence in light of the circumstances.
- 2 Whether the period spent in custody should be considered in sentencing.
- 3 Whether the accused's remorse and change in character should mitigate the sentence.
Ratio Decidendi
The court found that, despite the accused's mitigation and claims of remorse, the evidence demonstrated premeditation and a breach of trust as a father. However, following the principle established in Godfrey Ngotho Mutiso v R, the death penalty is not mandatory, and the court has discretion to impose a lesser sentence based on the circumstances. The court determined that a deterrent sentence was necessary due to the brutality of the offence, but also recognized the accused's potential for reform. Consequently, the accused was sentenced to thirty years imprisonment, with the period already spent in custody to be considered in the computation of the sentence.
Court Disposition
Accused sentenced to thirty years imprisonment, with period spent in custody to be considered. Right of appeal within fourteen days.
Orders
- The accused is sentenced to serve thirty (30) years imprisonment.
- The period spent in custody shall be taken into account in computing the sentence.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
Criminal Case 27 of 2007 [if gte mso 9]><xml>
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REPUBLIC …............................................................................ PROSECUTOR
VERSUS
CHARLES KIPTUM TUWEI .…....................................................... ACCUSED
RULING ON SENTENCE
In mitigation, Counsel for the accused submitted that the accused is a loving father of one child and is married to one wife. That he acted at impulse of range after a quarrel between himself, his son and his father. That he has been in custody since the year 2006. That during the period he was in custody, he has learnt his lessons and is remorseful. That he has changed his faith from Christianity to Islam as a sign of change in character. That the court should give him a non-custodial sentence in the circumstances.
But given the evidence on record, it is clear that the accused had pre-meditated the death of the deceased. He acted completely opposite of what is expected of a loving father. The trust bestowed on him as a father and protector of his family is all eroded. The innocent life of the deceased was taken away in a brutal manner that cannot be justified. It is in view of this I find that a deterrent sentence is called for.
However, as observed in the case of GODFREY NGOTHO MUTISO -V- R. MOMBASA CRIMINAL APPEAL NO. 17 OF 2008, death as prescribed by law is no longer a mandatory sentence depending on circumstances of each case. I am of the same view, given that, once handed a death sentence, the offender is denied the chance to reform. And I find this case, a suitable example in which the accused should be accorded a second chance to reform.
Taking into account all these factors, I sentence the accused to serve thirty (30) years imprisonment. The period spent in custody shall be taken into account in computing the sentence. Right of appeal fourteen (14) days.
It is so ordered.
DATEDand DELIVERED at ELDORET this 11th day of April, 2013.
G. W. NGENYE – MACHARIA
JUDGE
Mr. Misoi Advocate for the Accused
Mr. Munene for the State
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