https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10021

Republic v Chebii & 2 others (Criminal Case E017 of 2023) [2026] KEHC 10021 (KLR) (3 July 2026) (Sentence) Neutral citation: [2026] KEHC 10021 (KLR) Republic of Kenya In the High Court at Kabarnet Criminal Case E017 of 2023 TM Matheka, J July 3, 2026 Between Republic Prosecution and Wilson Kipchumba Chebii 1st Accused Wesley Yego Kimaiyo 2nd Accused Dennis Kemboy Alias 3rd Accused Sentence 1.The accused persons Wilson Kipchumba Chebii, Wesley Yego Kimaiyo and Dennis Kemboy Alias were charged jointly with another murder of Frankson Chebor Kamama contrary to section 203 as read with section 204 of the Penal Code. It was said that on 6/7/2023 at Tarren Bridge within Kinyach Location Baringo County they murdered 19 years old victim.They pleaded not guilty but after a full trial they were found guilty and convicted accordingly. I did not hear the case – and I proceed under section 200(2) as read with section 201(2) of the Criminal Procedure Code which provides the court taking g over a matter after delivery of Judgment has jurisdiction to mete the appropriate sentence. 2.I heard counsel for the prosecution and both counsel for the defence. I also considered the PACs Pre sentence report Pre-Sentencing Report 3.The pre-sentence report of the 1st accused was filed as directed, the accused’s two sisters noted that they are aware that their brother is currently serving 30 years imprisonment and him being convicted the second time they are still in shock as a family. They added that when the court is doing sentencing they pray for a lenient sentence so that he can come back and restart his life fresh. According to their brother never committed the offence in that on that particular time their brother was operating his food kiosk business within Arror shopping centre and it's due to political pressure that their brother was framed. They added that the accused had six children who were all school going and as a family they were assisting their sister in law in educating the children. 4.The accused’s wife and the eldest son were still in shock and disbelief that he has been found guilty again. They believe that the accused never committed the offence because the day. The wife prayed for a lenient sentence indicating that the accused was the bread winner to his family and at the moment she could fulfill the needs of the six children alone. 5.The eldest son noted that life has never been the same since the arrest of their father and his mother was struggling to make ends. He prayed for a non-custodial sentence to the accused. 6.The accused is aged 46 years, he had formal education up to standard eight at Kipkener Primary school, he never proceeded with his education due to low economic power at family level. For a living the accused has been doing farming within the community and running food kiosk. He was married had six children . The accused had been a leader for National Police Reservist since the 2017 for his sub-location up to time of his arrest. 7.The secondary victims were the victim's parents and elder sister. The victim was aged 19 years and a second born son to the family. He was a form three student at Moi Kabartonjo Secondary School. He had a child who was aged four years who was under the custody of his mother. 8.The victim's parents stated that as a family they had not been approached for reconciliation by the accused’s family and their main prayer was for the law to take its course. The victim's family noted that as a family they did not know the accused. 9.The accused who is currently serving 30 years imprisonment, prayed for lenient sentence. He added that he is still in shock that the court had convicted him yet to him he does not know the victim and on the date the offence is said to be committed he was busy running his food kiosk at Arror Market. He noted that he was the bread winner to his young family and at the moment his dear wife is really struggling a lot. 10.The local administration noted that the accused was well known to him and he was one of the respected members within the community. that his wife was struggling a lot in provision of basic needs to her family. He was able to confirm that reconciliation could not take place due to hard stand of the victim's family and the community members of where the victim came from. He noted that the accused had been of good character all along. 11.The local administrator where the offence took place opposed non-custodial sentence noting that his community members were still in fear that might harm them again. 12.The probation and after care officer recommended that in view of the accused currently serving 30 years imprisonment and the gravity of the offence, the accused not suitable to serve non-custodial sentence. 13.During the sentence and mitigation hearing Ms. Kosgei for the prosecution submitted that the accused were found guilty for murder of the deceased who met his untimely death due to the unlawful actions of the accused. That he was 19 years and a student at Moi High school Kabartonjo. That his life was cut short by the 2 accused and he was unmarried, no confrontations with the accused persons but was shot and he died on the spot. That the family of the deceased are still mourning the death of a man whose place in the family cannot be replaced. She submitted that the deceased had 2 year old child who is now fatherless due to the unlawful acts of the accused. 14.She invited the court to take into account interclan conflicts between Marakwet and Tugen. Which are a matter of national concern. That death occurred at the border between Marakwet and Tugen 15.That there has been no efforts of reconciliation and compensation which means no remorse on the part of the accused. That the family of the deceased is still apprehensive that their lives are in danger if the accused are not held to account for their actions. That the 1st accused was a person of trust as a police reservist. He abused that power and the equipment offered by the government to protect lives of Kenyans but he used the very gun given by the government to take out the life of the deceased. 16.Counsel invited the court to be guided by the sentencing guidelines to hand down a very deterrent sentence that matches the gravity of the offence. That this is one of those cases where the court should exercise its discretion and hand down the prescribed sentence of the death sentence. The court was referred to Francis Muruatetu where the Supreme Court of Kenya did not invalidate the death penalty-the mandatory nature was declared unconstitutional. 17.That where circumstances warrant, the court exercises its discretion of death penalty is handed down. That Article 26 of the constitution has not invalidated the death penalty. That they pray the court considers the aggravating circumstances and hand down a death penalty. 18.Mr. Buluma representing the 1st Accused submitted that in Muruatetu 2, is that that decision gave discretion to the court to consider the circumstances of each case in sentencing. He urged the court to find that this is one of the cases- the court will remain alive to the fact that it did not see/ hear any of the witnesses. Counsel urged the court to find that this case is one of those cases where the court will hand a lighter sentence. 19.Counsel submitted that he was aware that during the hearing, a lot of clan issues came out- the hostility between the Marakwet where the 1st accused comes from and the Tugen where the deceased came from. That it comes out clearly that hostility was so high even the investigating officer and the team could not visit the scene of crime. That they learnt that the hostility was so much that the opposing communities -say Tugen would do anything within their power to have the example of the 1st accused to be punished even if it was not certain he was the one who committed the offence. That any conviction from the Marakwet side would be met with a lot of joy from the Tugen side.That on the issue of trust upon the 1st accused by the government, he submitted that the 1st accused was not only Kenya police reservist but he was the head of the Kenya police reservist. he cited from Wikipedia the meaning of Police Reservist in Kenya National Police Reserve as a civilian ancillary force officially remitted, trained, armed by Government (GOK) to assist the NPS (National Police Service with maintaining law and order, preserving peace, and protecting life of people.That in the nature of the person the 1st Accused is – a person who put his own life in danger by taking up arms in the very volatile circumstances that my learned colleague acknowledges –The hostility in the area are of natural notoriety – we humbly submit – that Accused 1 by volunteering to assist to resolve this menace did not order himself to the perpetrators of these crimes, hence one of the risks was to be framed from some crimes. We are dealing with a law enforcement like any other – social service. 20.That in the nature of his pursuit, the 1st accused is a person who puts his own life in danger by taking up arms in the very volatile circumstances that counsel for the state acknowledges. That the hostilities in the areas are of national notoriety. He submitted that the 1st accused by volunteering to assist to resolve this menace did not endear himself to be perpetrators of these crimes. That due to the risks he had to be trained for serious crimes and that he was a law enforcer like any other social service. 21.On the issue of remorse, counsel submitted that the presentence report shows that the 1st accused being a person entrusted with protection of life regrets that a life was lost but not through his actions. That the presentence report indicates that the accused is not a 1st offender and he is serving a 30 years’ imprisonment in Kabarnet HCCRC E016 OF 2023, that he had lodged an appeal in Eldoret Court of Appeal E054 of 2025 Wilson Kipchumba Chebii vs Republic. 22.That the accused is respected at the community level as shown in the report where it indicates that he is a business man eking a living. That he is a parent, a father of 6 school going and also a sole bread winner and that considering all these, the time spent in custody of 3 years, they submit that the court to exercise its discretion to enable the accused to resume his duties as a family person and of the Government of Kenya still has faith in him to continue serving. They urged the court to consider non-custodial sentence. 23.Mr. Chebii counsel for the 3rd accused associated himself with the submissions of counsel on the hostility between the 2 communities. He urged the court to consider the sentencing guidelines. That the 3rd accused regrets the demise of the deceased and in his view, he regrets the loss of life. 24.That the accused is a person of good character vouched by the local administration, his father, his uncle. That in the presentence report, at school he was disciplined student and he had just finished form four when he was arrested. That he was barely 21 years and they ask for lenient sentence. That in the circumstances leading to the demise of the deceased, nobody knows what happened. 25.That lenient sentence is their request and the court to take into account the period spent in custody as per the court file. That they seek a non-custodial sentence. 26.The issue of the tribal conflicts between the Marakwet and the Tugen took centre stage in the submissions on mitigation. It was pointed out that these kinds of crimes are tribally instigated and there is joy on either side when anyone from either side is convicted/sentenced. 27.The court was urged to consider that the 1st accused had volunteered by putting his life on the line as an NPR Officer – to try and resolve the menace – it was submitted for the state that it was important for the court to bear in mind that the tribal hostilities were of national notoriety. 28.These submissions begged the question - are counsel saying that criminal liability can be attributed to the community? 29.According to the Penal Code – no offence is committed by communities – every offender is held individually liable for their actions Chapter V of the Penal Code states like so – section 20 speaks to principle offenders 21 – to joint offenders and common purpose 22 – counselling another to commit offence and then there is incitement under section 96– to violence – the offence is still personal even if committed against a community. It is important that as Kenyans we begin to take that personal responsibility for the actions we take – because when the offence is committed, even if in the name of the community, then the responsibility is individual. 30.When a murder is committed the life taken away is the life of a human being, the right to life if denied that person together with all the rights that go with that clearly, any celebrations on either side – be it Marakwet/Tugen is misplaced – because those who suffer are individuals never tribe can bring back the life of the person killed, never tribe will come to serve the punishment set out by the law. Hence – instead of fighting and killing each other, communities are encouraged to settle disputes and live in harmony that is in the spirit of the Katiba of Kenya. 31.All that said – the accused persons were found guilty and convicted of murder - this court cannot re-open the issue whether or not they did it – the Judge who heard the matter found them guilty. The circumstances – they shot innocent people on boda boda for no reason at all – and for that – the court must look at the objectives of sentencing – other than retribution there is rehabilitation in custody, there is deterrence – for others to know that the community hostilities taken to this extent, will be met by the law – when one is found liable of having committed an offence – 32.Section 204 provides penalty for the offence of murder – to be death. It states 33.204. Punishment of murderAny person convicted of murder shall be sentenced to death’. 34.The mandatory nature of the sentence of death in murder cases was dealt with by the Supreme Court in Muruatetu 1 – hence sentence in every murder case is to be determined in accordance with its specific facts. 35.The facts of this case were captured in the judgment. A 19 year old was killed in a senseless murder by a person who was supposed to provide security. His family remain traumatized to date. 36.The Sentencing Policy Guidelines 2023 at para 5. 2.2 states that murder causes harm that is immeasurable at para 5.2.4 the Guidelines provide a guide as to the assessment of both aggravating and mitigating factors. 37.It states at 5.2.3 In addition to the generic features contained in the GATS, (The Guided Approach to Sentencing (GATS) ) features particularly relevant to murder may include but are not limited to:5.2.4Aggravating Factors in Murder Cases: A significant degree of planning or premeditation. The mental or physical suffering inflicted upon the victim before death. Factors such as the type of weapon used, torture or inhuman or degrading treatment prior to death will be relevant. The use of duress or threats to enable the offence to take place. The vulnerability of the victim e.g., due to age or disability. The fact that the victim was providing a public service or performing a public duty. Multiple victims or multiple perpetrators. Where the offence involved an abuse of trust. The relationship between the victim and the accused should be carefully considered. Offence was motivated by, or there was demonstrated hostility to the victim based on his or her race, gender, sex, sexual orientation (or presumed sexual orientation), pregnancy, marital status (so called ‘honour killings’ for example), health status (e.g., murder occurred because of the HIV status of the victim, or albinism), ethnicity, culture, dress, language, birth, or religious orientation (or presumed religious orientation). A history of assaults, threats, or coercion upon the same victim. Absence of self-defence or provocation. The offence involved deliberate drugging or stupefying of the victim. Proven abduction or kidnapping of the victim before the murder was committed. Where a demand for ransom was made, signifying a financial motive. Concealing, destroying, or dismembering the body. Where the murder was conducted in furtherance of a ritualistic practice such as witchcraft.5.2.5Mitigating features relating to murder might include: Lack of premeditation. The offender suffered from a mental disorder or mental disability which lowered his degree of blame. In a case of joint enterprise, the role the offender played may be lower than his co-accused. For example, in the resentencing of the Applicants in Francis Karioko Muruatetu & 6 others v Director of Public Prosecution [2019] eKLR the Judge categorised the offenders into four categories based on their culpability. The first category involved the architects of an offence e.g., those who financed the killing, the second category involves offenders who ensnared the deceased into his death, the third category is the henchmen, those who carried out the brutal killing and the fourth category involves offenders involved in the cover up of the offence by attempting to silence witnesses. The Judge sentenced the third category with the highest term of imprisonment and graduated the term down for the other categories. That the offender was provoked. That the offender acted to any extent in self-defence or in fear of violence. The age of the offender. 38.The 1st accused is not a first offender as he is currently serving 30 years imprisonment on a different offence of murder, he is not remorseful but seeks leniency from this court – the offence was aggravated and included use of fire arms on the victim. 39.I have carefully considered the Probation and After Care Services, Pre-Sentence Report, the mitigation by counsels, the aggravating factors, the mitigating factors and find that the accused persons deserves a custodial sentence. 40.In Barisa -vs- Republic (Criminal Appeal 60 of 2022 [2024] KECA 219 (KLR) (1 March 2024) (Judgment)The Appellant was convicted for the offence of murder and sentenced to death in 2017. In his Appeal to the Court of Appeal, the court observed as follows;“32.In the instant case, the record shows that indeed the appellant with others organized a raid in Riketa village whilst armed with guns, pangas, rungus and machetes. The main aim of that raid was to kill, maim and destroy property, which was indeed actualized as some 54 people died and 66 animals were cut and houses burnt. The attack was meticulously planned and executed. From the evidence on record, there cannot be any other conclusion than that the appellant and the other attackers had a common intention to harm and kill their victims.”In reducing the sentence to 40 years, the Court of Appeal stated that the Appellant was sentenced before the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR whereupon the trial court reasoned that the death sentence was the only sentence available. 41.In Mauti -vs- Republic (Criminal Appeal 310 of 2019 [2025] KECA 641 (KLR) (4 April 2025) (Judgment)The Appellant was convicted for the offence of murder and sentenced to 20 years in 2019. In upholding the sentence, the Court of Appeal ( Omondi, Kimaru, Korir JJA) observed as follows;43.Taking into consideration the sentence meted out on the appellant against the facts of the case, the facts show that the deceased, an innocent unarmed worker, was shot at close range and suffered multiple organ injuries leading to his death. This was a needless, cruel and heartless crime by an officer of many years standing. From the nature of the injuries sustained by the deceased, it is clear that the appellant did inflict them with malice aforethought and that his conviction for murder was merited. The sentence meted out on him was fair and proportionate to the crime that he committed and there is no reason to interfere with the sentence. Ultimately, our finding is that the appeal lacks merit and is dismissed. 43.From the Muruatetu 1 it is possible to delineate sentences appropriately according to culpability. The 1st accused held a position of responsibility to protect others and to give leadership.3rd accused did not hold the same responsibility and was a young man who needed guidance. 44.The 1st accused is sentence to 30 years’ imprisonment less the period spent in custody pretrial and post-conviction of a total of 1 year, 4 months and 4 days. 45.The 3rd accused is sentenced to 20 years imprisonment with effect from 27th July 2023 46.Right of Appeal 30 days. SENTENCE RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 3RD JULY 2026.MUMBUA T MATHEKAJUDGEIn the presence of:-CA Momanyi/GladysAccused 1Accused 3Mr. Buluma for AccusedMr. Chebii for Accused 2Ms. Kosgei for the state