[2023] KEHC 25057 (KLR)

Republic v Chelimo (Criminal Case 14 of 2017) [2023] KEHC 25057 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25057 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 14 of 2017

RB Ngetich, J

November 6, 2023

Between

Republic

Prosecutor

and

Josphat Komen Chelimo

Accused

Ruling

1. The accused Josphat Komen Chelimo was 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 11th day of March,2014 at Tulungoi Sub-location in Baringo County, murdered Vincent Cheruiyot Limo. Upon hearing prosecution and defence case, the accused was found guilty and convicted accordingly. The court called for presentence report to assist in determining sentence.

Brief Facts of the Offence 2. The convict and the deceased who is his elder brother met early in the morning on March 11, 2013. They drunk local illicit brew together after which they went separate ways. In the evening, they met and discussed about family cattle. The discussion turned into a heated debate leading to a physical confrontation which resulted in the accused stabbing the deceased with an arrow. The accused alleges that the deceased is the one who was armed with the bow and arrow but he stabbed him out of self-defense. The offence is attributed to family conflict arising from inheritance and inability by the family to resolve the issue amicably.

Pre-sentencing Report 3. From the report, the convict had formal education up to class 6 at Sangarau Primary School where he dropped out due to lack of school fees and started work as herd’s boy to earn a living amongst other casual jobs before finally engaging in farming which he engaged in up to the time of his arrest. He is married to one wife and are blessed with 2 children aged 8 years old and 6 years. The accused regrets committing the offence and says he has already sought forgiveness from his family for killing his brother and promises to support his late brother’s children.

4. The local administration attributes the offences to domestic squabbles arising from inheritance and say the victim had been away in Solai area for a long time and had only returned home for about 3 months when the incident occurred. They are not opposed to a non- custodial sentence on the ground that there is no likelihood of violence by the convict

5. The mother of the accused indicated that as a family they have resolved to forgive the offender. She termed the offence as an unfortunate event that led to her losing one of her two sons and now considering that she has only one son left, she would rather have him free than incarcerated. She added that her daughters are all married and was therefore relying on her son, the offender, to assist in providing for her as she ages. She therefore prays that the court considers her sentiments and grants the offender a non-custodial sentence.

6. The wife of the victim indicates that as a family, they sat down and discussed the matter at length. They decided to forgive the offender and she is not opposed to a non-custodial sentence. She lives in Solai with her two children and says she is at peace with the offender and the entire family.

7. The Probation officer states that the convict before the court is well known by the local administration and members of the community where he hails from. Local administration says the convict was of good conduct before commission of the offence; they are not opposed to a non- custodial sentence.

Mitigation 8. The defence counsel Mr. Kiptoon mitigated on behalf of the convict’s and submitted that he is a first offender; that he was arrested in the year 2013 and has been in custody for a longer period before he was released on bond, counsel urged the court to take into consideration the period he has been in custody. He submitted that the convict is remorseful for committing the offence; that he is a family man and he was the only son.

9. He further submitted that victim was his brother who also had a family and that since the subsistence of this case, the accused has been taking care of his children and the family of the victim. He sought for non-custodial sentence so that the accused can continue taking care of his family, the victim’s family as all sisters of the accused are married and live away from home and there is no one to take care of their mother.

10. Ms Ratemo the prosecution counsel, submitted that the accused spent some period outside and that there is a period where his bond was cancelled. She urged the court to consider that during sentencing.

Determination 11. The sentence provided by section 205 of penal code for offence of manslaughter is life imprisonment. However, the Court of Appeal in Malindi Criminal Appeal No 12 of 2021 Between Julius Kitsao Manyeso v Republic declared the sentence of life imprisonment unconstitutional and stated that it is unfair for a person to be behind bars until they die. The court is therefore at liberty to impose a lesser sentence depending on circumstances of each case.

12. I have considered that fact that accused is a first offender and mitigation, and even though sentiments by the local administration and family are inclined to noncustodial, I take note of the fact that the convict inflicted injuries leading to deceased death in a cruel manner by shooting him with an arrow and I am of the view that the convict ought to undergo custodial rehabilitation before being released to the community. I am inclined to impose a lenient custodial sentence as it will not take him away from the family for long.

13. Final orders1. Accused to serve 5 years imprisonment.2. The period served in remand to be reduced from the sentence above.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 6TH DAY OF NOVEMBER 2023. RACHEL NGETICHJUDGEIn the presence ofAccused present.Ms Ratemo for State.Mr. Kiptoon for accused.