[2023] KEHC 26032 (KLR)

Republic v Cheruiyot (Criminal Case 21 of 2017) [2023] KEHC 26032 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26032 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 21 of 2017

RL Korir, J

November 30, 2023

Between

Republic

Prosecution

and

Isaiah Kipkemoi Cheruiyot

Accused

Ruling

1. The Accused 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 were that on 26th November 2017 at Murany village Kembu Location within Bomet County, the Accused murdered Enock Cheruiyot.

2. At the conclusion of the trial, this court found the Accused guilty of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. In convicting the Accused the court in its Judgment dated 31st July 2023 held as follows:-“In this case I have found the Accused guilty of causing the unlawful death of the deceased. As the element of mens rea is not proved to the required legal standard, I apply the provision of section 179 (2) and substitute the offence of murder with that of manslaughter”.

3. Sentencing is an important task in the administration of justice. Upon conviction, a court of law is expected to exercise its discretion in meting out an appropriate sentence. Thus, sentencing is a reserve of the trial court because it is the trial court that has the privilege of observing the demeanor of the witnesses and particularly the victims and the Accused in passing an appropriate sentence. In S. vs. Nchunu & Another (AR 24/11) [2012] ZAKZPHC6, the Kwa Zulu Natal High Court stated:“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be. The purpose behind a sentence was set out in S vs. Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35:"“Plainly, any sentence imposed must have deterrent and retributive force. But off course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones. …….It is trite that it is in the interest of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”

4. The Objectives of sentencing were set out in The Judiciary Sentencing Policy Guidelines of 2023 outline the objectives of sentencing at paragraph 1. 3.1. as follows: -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 well as to discourage other people from committing similar offences.iii.Rehabilitation: To enable the offender reform from his 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. Criminal conduct ordinarily occasions victims, communities’ and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.v.Community protection: To protect the community by incapacitating the offender.vi.Denunciation: To communicate the community’s condemnation of the criminal conduct.vii.Reconciliation andviii.Re-integration

5. The Court of Appeal in Thomas Mwambu Wenyi v. Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira v. State of Mahareshtra at paragraph 70-71 regarding sentencing and stated thus: -“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.”

6. From the above it is clear that, a court of law must exercise its discretion judiciously and ensure that any sentence passed meets any one or all of the objectives outlined above. Various mitigating and aggravating factors must also be considered in determining the type of sentence for an accused person. Some of the factors to be considered in determining an appropriate sentence were outlined in the famous Supreme Court case of Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR (SC Petition No. 15 &16 of 2015) as follows: -“(71)…, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant.”

7. This court held a sentencing hearing during which it received the mitigation of the Accused on 28th September 2023. His learned defence counsel Mr. J.K. Koech submitted that the Accused was drunk when he beat the deceased. That he was trying to discipline him. Counsel further submitted that the Accused was remorseful and regretted the unfortunate incident.

8. In further mitigation, Counsel submitted that the Accused had sought forgiveness by sending emissaries to the victim’s family. It was his further submission that the Accused had young children who required his presence. Counsel further prayed that the court treats the Accused with leniency. He prayed for a non-custodial sentence so that the Accused could become a more useful member of the society.

9. Learned Prosecution counsel Mr. Njeru submitted that the Accused was a first offender and had been in custody for about 6 years. He further submitted that the victim’s family had not reconciled with the Accused. He urged the Court to consider that a life was lost and to mete out a custodial sentence.

10. This court called for a Probation Officer’s Pre-Sentence Report and the same was filed on 22nd September 2023. The Report stated that the Accused was repentant and regretted the offence. That he was trying to discipline the deceased because of his wayward behavior and had no intention of killing him.

11. The Pre-Sentence Report stated that the Accused’s family were seeking forgiveness from the victim’s family. That they were ready and willing to initiate reconciliation with the victim’s family. The Accused’s family pleaded with the court to grant the Accused a lenient sentence.

12. According to the Report, the community led by the local chief blamed alcoholism for the commission of the offence. The chief stated that the Accused was of good conduct and did not have any criminal history. The Chief stated that the offence was serious as a young and productive life had been lost in an inhumane manner and that the community hoped that there would be forgiveness and reconciliation between the two families.

13. This court is required to consider victim impact statements as provided by section 12 of the Victim Protection Act No. 17 of 2014 which states: -(1)A victim of a criminal offence may make a victim impact statement to the court sentencing the person convicted of the offence, in accordance with section 329C of the Criminal Procedure Code (Cap. 75) and that statement may be considered by the court in determining the sentence of the offender.(2)lf a victim expresses a wish to make a victim impact statement, a prosecuting agency shall refer the victim to an appropriate victims' services agency for assistance in preparing the victim impact statement.(3)A victim has a right to present a victim impact statement in all cases where the court is to consider victim protection and welfare.(4)The statement referred to under subsection (1) shall include information on the impact of the offence on the victim's life and any concerns the victim may have about their safety.

14. Regarding the victim’s family, the Pre-Sentence Report stated that the deceased’s mother had not come to terms with the loss of her son and was still hurt and angry. She believed that the offence was committed intentionally. She stated that her son was denied a chance to live out his life and his dreams by someone who claimed to care for him. She expressed pain that the family continuity was cut off abruptly and expressed hope to get justice from the court.

15. I have considered the circumstances of the case and the Pre-Sentence Report. The Accused who was the de facto adoptive father of the deceased beat the deceased who was a child of tender years with the intention of disciplining him but went overboard and caused the victim fatal injuries. As the court found in its judgement the Accused unlawfully snuffed out the deceased’s young life.

16. The Accused’s family sought a lenient or non-custodial sentence while the victim’s family were still distraught and pained by the death of the deceased and wanted justice to be served by this court.

17. This court holds the view that a parent has a right to discipline their children for purposes of correction and instruction. However, fatal assault cannot be countenanced as one of the modes of discipline. This court considered the post-mortem report (P.Exhibit 1) produced by Dr. Mahad Abond Abdallah (PW3) who testified that the victim had a depressed skull dislocation (snapping of the neck) at the base of the skull and twisting of the spinal cord at C1 and C2. The Accused’s actions were clearly violent and ran counter to those of a loving and caring father or guardian. It is my finding therefore that the Accused deserves a deterrent custodial sentence, one which will discourage violence as a measure of disciplining children.

18. The penal section for the offence of manslaughter is contained in section 205 of the Penal Code which provides:-Any person who commits the felony of manslaughter is liable to imprisonment for life.

19. I have considered the Accused’s mitigation that his intent was only to discipline the deceased for his way ward behavior and that he had no intention of killing him. That the Accused was remorseful and regretted his actions and that he had young children who required his presence at home. The Accused’s mitigation is persuasive and he deserves to be spared a harsh sentence.

20. Sentence must reflect the seriousness of the crime. In R Vs Scott (2005) NS WCCA 152, Howie J. Grove and Barn JJ stated:“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed…… one of the purposes of punishment is to ensure that an offender is adequately punished…. a further purpose of punishment is to denounce the conduct of the offender.”

21. In this case, a young life was lost. The victim, a child of tender years, at only 7 years old was subjected to brutal canning and twisting of the neck that led to his death. The Accused who was a guardian and his protector turned to be his oppressor and killer. Such actions must attract sanction. It is my firm conviction that it would be in the interests of justice to impose a custodial sentence.

22. I sentence the Accused to serve 10 years’ imprisonment. The Accused has been in pre-trial custody. In accordance to section 333 (2) of the Criminal Procedure Code, the sentence shall run from 29th November 2017 being the date of his first arraignment.

23. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 30TH DAY OF NOVEMBER, 2023. .........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for the State, Mr. Ondieki holding brief and Mr. J.K. Koech for the Accused.