[2022] KEHC 13370 (KLR)

Republic v Cherotich (Criminal Case 27 of 2019) [2022] KEHC 13370 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13370 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 27 of 2019

RL Korir, J

October 5, 2022

Between

Republic

Prosecution

and

Faith Cherotich

Accused

Judgment

1. Faith Cherotich (accused) was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. She was alleged to have murdered Dominic Ogatchi Sosi on December 9, 2019 at 20. 45 hrs. at Boito Market Boito Sub-location, Konoin Sub –County within Bomet County.

2. The accused took plea before Dulu J, on December 18, 2019 and denied the charge. When the matter came up for trial on November 1, 2021, learned defence counsel Mr Ngeno informed the court that the accused wished to plea bargain with the State. One witness testified and thereafter the court adjourned the matter to enable the parties time to plea bargain. Subsequently the parties filed their duly executed agreement on March 23, 2022.

3. This court accepted the plea agreement after satisfying itself that the accused had understood the process and voluntarily executed the agreement and that the agreement disclosed material admission of guilt on the part of the accused.

4. The accused was consequently charged with the lesser offence of manslaughter contrary to section 202 of the Penal Code on 14th July, 2022 to which she pleaded guilty.

5. The facts of the case as read by the learned prosecution counsel follows:“On December 9, 2019, the accused Faith Cherotich at Boito Market, Boito sub-location in Konoin Sub-County in Bomet County murdered Dominic Ogatchi Sosi.On the material date, the deceased had been hired to clean a hotel after the day’s work, soon after the deceased had commenced the cleaning the accused who was a form two student then at Boito Secondary School arrived as a customer with muddy shoes from outside. The deceased tried to stop the accused from stepping on the areas that he had cleaned and caused a scuffle between the two, and in the process the deceased slapped the accused several times (as stated in the witness statements), it was due to this provocation that caused the accused armed herself and stabbed the deceased causing the fatal injuries that resulted in the death of the deceased.On December 9, 2019, the accused herein was arrested and later arraigned in court with the charge of murder and which offence has now been commuted to a charge of manslaughter.”

6. The accused confirmed the facts as true and the court convicted her on her own plea of guilt.

7. At the sentencing hearing on September 21, 2022, Mr Ngeno submitted that the action which caused the death of the deceased resulted from a high degree of provocation by the deceased. He submitted that the accused was remorseful and had accepted the mistake at the earliest opportunity by plea bargaining. Counsel submitted that the accused had undertaken to seek out and reconcile with the family of the deceased. Counsel further submitted that the accused was a young mother and was still a student even after getting a baby. That she prayed for a second chance so as to be reunited with her family.

8. On this part, Mr Njeru for the prosecution submitted that the accused may benefit from a lenient sentence as she had pleaded guilty. He further stated that she was a first offender.

9. The court called for a pre-sentence probation officers report and the same was filed on July 26, 2022. The report states that the accused was the first born daughter of a single mother of 3 who is engaged as a casual labourer. That the accused was a form two student at the time of the offence having gone back to school after dropping out due to teenage pregnancy. According to the report the accused had been sent by her mother to buy some items. She entered the shop with muddy shoes which upset the deceased who was cleaning the floor and an altercation between them ensued. That the accused went to a nearby shop where she brought a knife and went back to fight with the deceased. She stabbed him leading to his death. The report attributes the accused’s violent conduct to the hostile socio-economic circumstances of her family. It recommends that she be given a chance to reform through a probationary sentence.

10. Sentencing serves critical purposes in criminal justice. These are captured in the Judiciary Sentencing Policy to include:-i.Retribution: to punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: to deter the offender from committing a similar offence subsequently as wel as to discourage other people from committing similar offences.iii.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.iv.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.v.Community protection: to protect the community by incapacitating the offender.vi.Denunciation: to communicate the community’s condemnation of the criminal conduct.

11. In R v Priscillah Cherono Chebet & 2 others, Nairobi Criminal Case No 65 of 2011, this court cited the Court of Appeal decision in Thomas Mwambu Wenyi Vs Republic (2017) eKLR which cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71 where the court aptly summarized and explained the objectives and principles of sentencing in the following words:-“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

12. I have considered the mitigation of the accused vis-à-vis the purposes of sentencing. I have also considered the social inquiry report which stated that the accused came from a dysfunctional and economically challenged family in which her mother was given to alcoholism even as she struggled to provide for her children and the accused’s own child aged 6, through casual labour. I have also considered that the accused was only 23 years old and wished to complete her education and make something out of her life.

13. In balancing the scales of justice however, I have borne in mind that the unbridled anger of the accused caused loss of the life of the deceased. He may have angered her but her reaction was totally disproportionate to the provocation. She left the shop where the deceased was cleaning, walked to another shop to by a knife and went back to stab the deceased to death. There was no evidence presented to this court of a prior existing relationship between the accused and the deceased. They just happened to live in the same market centre. Her unexplained anger therefore calls for deep rehabilitative measures.

14. The accused has expressed remorse and has saved the court precious judicial time by plea bargaining and accepting the lesser charge for which she has been convicted. She has also been in pre-trial custody since December 9, 2019 when she surrendered herself to the police where she was arrested. She was subsequently granted bond, but was unable to get anyone to stand surety for her.

15. It is my conclusion from the assessment of all the aforestated factors, that the accused will be better rehabilitated through a lenient prison sentence during which time she should be encouraged to complete her secondary education and acquire relevant skills which will enable her turn around her life and that of her family upon release.

16. The accused is sentenced to serve 7 years imprisonment which sentence shall be calculated to run from December 18, 2019.

17. The Deputy Registrar of the court is directed to bring this judgment to the attention of the officer in charge Bomet Women Prison.

Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 5THDAY OF OCTOBER, 2022. ..........................R LAGAT-KORIRJUDGEJudgment delivered in the presence of Mr Njeru for the State, Ms Chemutai holding brief for Mr Ngeno for the Accused, and Kiprotich (Court Assistant).