[2023] KEHC 26301 (KLR)

Republic v Cheruiyot (Criminal Case E024 of 2022) [2023] KEHC 26301 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26301 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E024 of 2022

RL Korir, J

December 7, 2023

Between

Republic

Prosecution

and

Vincent Kibet Cheruiyot

Accused

Judgment

Judgement upon plea agreement 1. On 24th August 2022, Mzee David Kipkemoi Koske was seated outside his house while his son Vincent Kibet Cheruiyot alias Gilbert (now Accused) was preparing banana stems for cattle feed using a pruning knife. Another son Amos Kiprotich was also present. His other son Bernard Kipkirui (now deceased) arrived in the homestead and found their father taking tea. He accused the father of having chased away his (Benard’s) wife and a quarrel ensued.

2. Bernard grabbed the cup and splashed the tea on his father then grabbed him by the collar trying to strangle him. Vincent went to the rescue of their father and hit his brother with the pruning knife cutting him on the head. As his brother fell, Vincent took off. Bernard (deceased) was rushed to hospital where he succumbed to the injury. Vincent (Accused) was arrested and after due investigations 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 Vincent Kibet Cheruiyot Alias Gilbert Cheruiyot on the 24th day of August 2022 at Komirmir village in Kugurwet Sub-Location in Konoin within Bomet County murdered Benard Kipkirui Cheruiyot.

3. When the case came up for trial on 27th July, 2023 the Prosecution and the defence informed the court that the parties were plea bargaining.

4. A Plea Agreement was filed in court on 24th October, 2023. The Court accepted the Agreement upon satisfying itself that the accused had executed the same voluntarily and had been made fully aware of his trial rights.

5. The Accused took plea on the charge of manslaughter and pleaded guilty. The Prosecution read the facts already outlined at paragraph 1 and 2 of this judgement and the Accused accepted the facts as correct. The Court consequently entered a plea of guilty and convicted the Accused of the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

6. At the sentencing hearing on 14th November, 2023 Mr. Leteipa the learned defence counsel submitted that the Accused was 22 years old and was the younger brother of the deceased. That the offence was committed after an altercation in the family. That the deceased attacked his father and the Accused went to their father’s rescue. Counsel submitted that the complainants and victims were the same family and that they had resolved to reconcile and forgive the Accused. Counsel further submitted that the court was empowered by Article 159 of the Constitution and Section 20 of the Victim Protection Act to give recognition to reconciliation. He submitted that the place of reconciliation should be visible in the criminal justice system and that a probationary sentence would serve a rehabilitative purpose.

7. Mr. Njeru the learned Prosecution counsel urged the Court to impose a custodial sentence however lenient as a life was lost. He requested the court to allow the victims who were present in court to address the court. He further submitted that the Accused was a first offender and had no criminal record.

8. Mzee David Koske told the Court that the Accused was his son and that the family had forgiven him. He acknowledged that the Accused had committed an evil offence, but stated that they had forgiven him. He further told the court that the Accused committed the offence while rescuing him from his brother, the deceased. That the deceased had poured hot tea on him and held him by the collar when the Accused cut him. He further said that the deceased had chased away his (deceased’s) mother and wanted to fight him also.

9. The deceased’s mother Anna Koske asked the court to forgive the Accused whom she said did not have any criminal inclination. She pleaded with the Court to consider her views having suffered a double loss being the mother of both the accused (who was now in jail) and the deceased. She said that she had forgiven the Accused.

10. A presentence probation officer’s report dated 6th November, 2023 was filed on 15th November, 2023. It stated that the Accused was hitherto a responsible young man aged 22. That the deceased was known to be a violent person who had even served a jail term on a manslaughter case and was released. The report further stated that the family who were the victims of the offence as well as the community had no reservations at all in receiving back and reintegrating the Accused.

11. The purposes of sentencing are set out in the Sentencing Policy Guidelines 2023. They include;i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Community Protection.vi.Denunciation.vii.Reconciliation.viii.Reintegration.

12. In this case the defence has urged the court to place premium on reconciliation as an objective of sentencing. This Court further heard the victims of the offence who urged the court to grant the Accused a non-custodial sentence on grounds that they had come to terms with their loss and had forgiven the Accused. This court in the case of Republicvs. Priscilla Cherono Chebet & 2 others, Nairobi Criminal Case No. 65 of 2011 explored the place of reconciliation in criminal justice and held thus: -“It is my considered view that reconciliation ought to be given visible and viable space in the criminal justice system as envisaged by Article 159 of the Constitution. For both the offender and victims, genuine reconciliation brings closure to the loss however heinous the crime committed may have been. Reconciliation is even more critical where both the offenders and the victims are family, relatives, neighbours or friends. It therefore behoves the courts where the circumstances of a case permit, to promote reconciliation alongside penal sanctions. In my view, reconciliation speaks to the humanity of the offender and of the victim(s) while penal sanctions speak to society’s condemnation of the offender and the offence and the two ought to work in tandem.”

13. This court holds the view that the present case was one such case where reconciliation and reintegration as objectives of sentencing would serve a useful purpose. I have considered in particular that the victims had forgiven the Accused and had come to terms with the loss of their son. I have also considered that the Accused had no negative antecedents and that he acted on the spur of the moment to rescue his father from the violence of his brother, the deceased. I find that the Accused deserves a non-custodial sentence. Such a sentence would further reconciliation and reintegration and bring closure within the family.

14. The Accused is sentenced to serve 2 years’ probation during which time he should undergo anger management training and counselling.Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 7TH DAY OF DECEMBER, 2023. ...................................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Njeru for the State, Mr. Leteipa for the Accused and Siele (Court Assistant)