[2023] KEHC 26125 (KLR)

Republic v Chelule (Criminal Case E010 of 2022) [2023] KEHC 26125 (KLR) (30 November 2023) (Sentence)

Neutral citation: [2023] KEHC 26125 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E010 of 2022

RL Korir, J

November 30, 2023

Between

Republic

Prosecution

and

Geofrey Chelule

Accused

Sentence

1. The accused, Geofrey Chelule was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on April 25, 2022 at around 0130 hours at Koibeyon village in Kapkimolwa location, Bomet East sub-county within Bomet County, the accused murdered Kelvine Kimutai.

2. The accused took plea on June 23, 2022 and denied the charge. The case was then set down for pre-trial directions.

3. The case proceeded for hearing on February 21, 2023 when Joyce Chepkemoi (PW1) testified. She told the court that she was the mother of the deceased and that the accused was her brother. When PW1 completed her testimony, the learned prosecution counsel Mr Njeru stated that the families of the accused and the victim had informed him that they had reconciled. He therefore wished to make a plea offer to the accused. He sought an adjournment for that purpose.

4. A plea bargain agreement dated September 27, 2023 was filed on the same day. The Plea agreement indicated that the accused had agreed to plead guilty to the lesser offence of manslaughter.

5. On October 4, 2023, this court accepted and admitted the plea agreement after satisfying itself that the accused had engaged in plea negotiations and signed the agreement voluntarily. The court took particular attention to confirm that the accused understood the trial rights he would forgo and more importantly that the accused understood that his sentence would be at the discretion of the court.

6. The accused subsequently took plea for the offence of manslaughter. He accepted the charge and the court entered a plea of guilty for the offence of manslaughter.

7. The learned prosecution Counsel, Mr Waweru read the following facts as captured in the plea agreement:-“The accused Geofrey Chelule is the uncle to the deceased Kelvine Kimutai. He is also the brother to Agnes Chepngetich, a key witness in this matter.On the night of April 25, 2022, the deceased Kelvine Kimutai and his aunt Agnes Chepngetich arrived home from a Kipsigis rite of passage celebration. They found the accused and other visitors at home. All of them were completely drunk.A disagreement arose between the accused and his sister Agnes and the accused was thrown out of the house. His nephew Kelvin followed him outside and a fight ensued between them. It is not clear from the prosecution witnesses what triggered the altercation between the two but according to the accused, it is the deceased who was armed with a knife who first attacked him. The accused disarmed the deceased and turned the knife on him and stabbed him once. The deceased was later taken to the hospital where he succumbed to the injury. The cause of death was established to be massive bleeding in the abdomen.The prosecution accepts that all parties were drunk with traditional liquor. The accused and the deceased had a fight in their drunken stupor and it is not clear what caused them to entangle. We also accept the explanation by the Accused that the deceased was the aggressor. The family has reconciled as confirmed by PW1 Joyce Chepkemoi the deceased’s mother and sister to the accused.”

8. The prosecution produced the Post-Mortem Report (Exhibit 1), the murder weapon (Exhibit 2) and a red blood stained Red, T-Shirt (Exhibit 3). The accused stated that the facts were true and the court convicted him on his own guilty plea for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The court further called for a Pre-Sentence Probation Officer’s Report and scheduled a sentencing hearing.

9. The Pre-Sentence Report dated October 23, 2023 was filed on the same day. The Report stated that the accused regretted his actions and that he had asked for forgiveness from his family members. That the accused had promised to reform his life and abstain from alcohol.

10. The Probation officer further reported that the community through the local administration stated that the victim’s family had reconciled and resolved to forgive the accused.

11. Mr Leteipa learned counsel for the accused made submissions in mitigation on behalf of the accused. He submitted that the court should consider the statement of facts contained in the Plea Agreement as it was shown that the offence was committed when the accused and the deceased were completely drunk. That it was the deceased who first attacked the accused and the accused stabbed him with a knife. Counsel further submitted that the accused’s family and that of the deceased had reconciled and had resolved to forgive the Accused as shown by the testimony of PW1 who testified before the plea agreement was executed by the parties.

12. In further mitigation, Counsel submitted that the accused was remorseful. He urged the Court to give due consideration to the Sentencing Policy Guidelines which provide the objectives of sentencing to include rehabilitation. Stating that the accused was now rehabilitated Counsel prayed for a probationary sentence so that the accused could reunite with his family. He relied on Republic vs Stanley Njau Kamau 2021 eKLR and Francis Karioka Muruatetu &another v Republic, Petition No 15 of 2015.

13. On their part, the prosecution through the learned prosecution counsel Mr Njeru submitted that they appreciated that the accused had saved State resources by pleading guilty to the offence of manslaughter. He however submitted that the court should consider that a life had been lost. He drew the attention of the court to the high incidences of murder in the county because of drunkenness. He urged the court to issue a custodial sentence however lenient as the same would discourage such killings as opposed to a probation sentence.

14. Sentencing serves multiple purposes as enumerated in the Sentencing Policy Guidelines 2023 which outline the objectives of sentencing at paragraph 1. 3.1 as follows:-Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other- in so far as possible, sentences imposed should be geared towards meeting the objectives in totality.i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Community Protection.vi.Denunciation.vii.Reconciliation.viii.Reintegration.

15. In sentencing the accused, I will be guided by the gravity of the offence, the circumstances of the case and the offender’s personal circumstances. The court is also required by the Victims Act(2014) to take into consideration the views of the victims or the Victim Impact Statement.

16. In Jacob Kirimu Kabiru vs Republic (2010) eKLR, the Court of Appeal held that:-“We believe that the restricted right of appeal where a bargain has been struck is to assist in speeding up the process and to attain finality at the earliest time possible. However, we note that the superior court even after realizing that the plea was based on a plea bargaining agreement did not consider the mandatory provisions of section 137 I (2) of the Criminal Procedure Code and in particular, the need to take into account a victim impact statement. In our view, such a victim impact statement would have been necessary……….”

17. Similarly in Joseph Lendrix Waswa vs Republic (2019) eKLR, the Court of Appeal held that:-“By section 12 of the VPA, a victim of a criminal offence may make a victim impact statement in accordance with section 329C of the Code. By section 329C (2) of the Code, if the primary victim (that is a person against whom the offence was committed) has died as a direct result of the offence, a victim impact statement can be made by a family victim defined to mean, a member of the primary victim’s immediate family, and includes a member of the primary victim’s immediate family, the victims spouse or de facto spouse; a parent, guardian, step-parents,; child, step child, brother, sister, step-brothers or step sisters of the victim.”

18. I have considered the victim’s impact statement contained in the pre-sentencing report. The accused was the victim’s uncle and therefore there existed a close familial relationship. The Report stated that the victim’s mother had slowly come to terms with the loss of her son and that she had forgiven the accused who was her brother.

19. The report further stated that the victim’s relatives who were close kinsmen to the accused had resolved to forgive the accused and have him undergo the traditional cleansing ritual once he has completed his prison term. The victim’s mother pleaded with the court to issue the accused with a light jail sentence so that it can serve as a reminder of the offence he committed.

20. I have also considered the circumstances of the offence. The accused and the deceased were close relatives and on the material day for unclear reasons, they engaged in a fight which left the deceased with fatal injuries. I have also considered the fact that at the time of the commission of the offence, both the accused and the deceased were drunk.

21. I have considered the victim impact statement and the fact that the family had reconciled and forgiven the accused. They have however sought a prison sentence as part of the accused’s rehabilitative punishment.

22. I have taken into consideration that the Accused has been in custody since April 25, 2022 when he was arrested and that he had no prior criminal record. I have also taken into consideration the fact that the deceased lost his life as a result of a senseless killing arising out of a drunken brawl. I am persuaded that a non-custodial sentence was not appropriate in this case. The accused shall be better rehabilitated in prison where he can also acquire a skill to aid him after release.

23. The accused shall serve 5 years’ imprisonment. The sentence shall be deemed to run from April 25, 2022 being the date of his first arrest and pre-trial custody.

Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 30TH NOVEMBER , 2023. .........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of:-Mr. Njeru for the StateMr. Kenduiwo holding brief for Mr. Leteipa for the Accused a