https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12349

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KABARNET** **HCCRC NO. E006 OF 2020** REPUBLIC ………………………………………………….…..PROSECUTOR **VERSUS** SAMUEL KIBET CHERUTICH………..………………...……….……ACCUSED **JUDGMENT ON PLEA BARGAIN** 1. This matter demonstrates the challenges of Plea Agreements and how if not well done, can cause Mis apprehension, and delay. 2. The accused **SAMUEL KIBET CHERUTICH** was charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on the 5th day of September 2020 at around 1400 hours at Turuturu village, Kabutie Location in Baringo North Sub-County within Baringo County murdered Reuben **Chemwetich Cherutich**. 3. The accused pleaded not guilty on 28/9/2020 before Justice Edward Muriithi J. 4. On 25/5/2023, then at Ng’etich J as she then was informed that the defence wanted to plea bargain. On 15/6/2023 – the court was told that prosecution was working on the Plea Bargain Agreement documents. On 13/7/2023 prosecution told the court they were yet to speak to the victim. 5. On 10/9/2023, prosecution told the court that Plea Bargain was declined. Matter was fixed for hearing on 20/11/2023. On 20/11/2023 accused informed the court that he still wished to Plea Bargain. 6. Court was informed that the Plea Bargain request had been forwarded to prosecution. On 15/1/2024 the prosecution told court that the Plea Bargain had been declined. The matter could not proceed on the allocated hearing dates 27/5/2024 for lack of witnesses. Prosecution said they had fled from their homes due to insecurity. 7. This was opposed by defence – on the account that they sought Plea Bargain. Witnesses came on 30/7/2024 but would not be heard – court had another hearing 25/23. 8. On 23/5/2024 – the prosecution - Ms Ratemo – said she had received a Plea Bargain request – sought mention date. On 14/11/2024 – some of the victims present in court – rejected the Plea Bargain. 9. Matter was fixed for hearing on 12/2/2025. Accused told the court he had spoken to family of victim and he wanted to Plea Bargain. Counsel – Mr Mongeri told the court – ***“My client says they are attempting plea bargain. The deceased was the father to accused and the deceased’s brothers are not agreeable because they are thinking accused will be released may be the prosecution should talk to the deceased’s siblings to understand plea bargain. We have a mention.*** ***Bartilol – I confirm that the accused has been pleading for plea bargain.*** ***The victim’s family may not be understanding plea bargain. I will make them understand plea bargain, the intents and purpose and consequences.*** ***This is a matter suitable for plea bargain. I pray for witness expenses for the 4 witnesses.”*** 1. On 12/3/2025 – ***“Bartilol – I confirm we received request for plea bargain. However, I talked to the victim’s and today in the morning I also talked to them and they informed they have not had a meeting with family of accused. They were unaware what plea bargain is but I explained to them but they have not had a sitting for that reason, we can take a further mention date to confirm position on plea bargain.*** 1. On 6/5/2025 Prosecution – Ms. Kosgei said Plea Bargain was declined. Hearing date was fixed for 28/5/2025. ***“Ms. Kosgei – It is for hearing unfortunately we are not ready to proceed with the hearing. It was referred to plea bargain which failed. The witnesses have challenge on transport. They have no fare. I pray for another mention to give them a chance to pursue plea bargain.*** ***Mr. Mongeri – There was history of plea bargain for a long time. I pray that we take a hearing date if court doesn’t succeed we proceed for hearing.”*** 1. On 22/7/2025 ***“Accused – I have talked with victim’s family and we have agreed.*** ***Ms Kemunto – I hold brief for Mr. Mongeri for accused.*** ***Ms Kosgei – Witnesses say they have not agreed. May be they can be given more time.*** 1. On the hearing date of 29/10/2025 Ms. Bartilol for DPP said – ***“I do not have witnesses. The Investigation Officer was in court and he informed me that parties are trying to pursue plea bargain. I seek a mention date to confirm position on plea bargain.*** ***Mr Mongeri – They are taking a long time. This was the argument in March and December. You can give them one more chance but we can take a hearing date in the meantime.*** 1. I took over the matter on 21/4/2026. It was for mention to confirm Agreement. The court was told that deceased was father of the accused. The Accused said they had “spoken” as a family and agreed. The Plea bargain was eventually signed as court was informed on 2/6/2026. 2. On 9/6/2026 the Plea Agreement was recorded. The accused person pleaded to the lesser charge of manslaughter contrary to section 202 as read with section 205 of Penal Code. 3. Facts were presented by the prosecution that; On the 6th day of September, 2020, the accused and the deceased were walking together and passed by the home of one juvenile namely Faith Jemuge who heard them quarrelling. The deceased who is the accused’s father told him not to step on his (deceased’s) land. The accused was angered and left the deceased as he headed to his brother’s house namely Abraham Cherutich where he picked an arrow and a bow. The accused then proceeded to where the deceased was, and he shot him on the chest and the deceased fell down and died. All this was witnessed by Joan Chepkonga Kimutai. The accused fled the scene but was later arrested by the members of the public. They body of the deceased was taken to Baringo County Referral Hospital mortuary awaiting postmortem. The suspect was escorted to Kabartonjo police station. 4. On 15th September 2020 post-mortem was conducted to ascertain the cause of death of the deceased and the same was confirmed to left lung hemothorax with left sided lung collapse. 5. On 21st September 2020 the accused person was charged with the offence of murder which the State now substitutes to that of manslaughter upon request for Plea Bargain. The prosecution the **post** mortem report for the deceased Reuben Chemwetich Cherutich dated 15/09/2020. 6. On the sentence and mitigation hearing Mr. Koech submitted that*the accused pleaded guilty to manslaughter pursuant to Plea Bargain Agreement – It was appreciated by prosecution that the family members had been saved emotional burden of a full trial. That the offence is still serious –deceased lost life from unlawful act of accused deceased was father of accused – Accused armed himself with bow and arrow – shot his father in the chest. That the accused had left the scene to obtain weapon: That the degree of culpability was high because it was not a spontaneous act in the heal of the moment. He urged the Court to take into account that the victim is father of accused and other family members were deprived of a parent, this is irreversible loss of human life. Security of life remains paramount. Sentence – should be framed to condemn such and to meet the objection of sentencing. Prosecution acknowledges the mitigating circumstances demonstrate some sort of remorse, saved judicial time. Prosecution respectfully urges court to mete a custodial sentence to reflect the gravity of the offence.* 7. Mr. Mongeri for accused submitted that the prosecution could not be heard to speak from both side of the mouth after agreeing to Plea Bargain Agreement. That *the Accused has been in custody since his arrest, last 6 years. He has learnt his lesson. The entire family was in court for the Plea Bargain – they accepted to negotiate with their brother. They have allowed the Plea Bargain to be entered. You see the presentence report family is largely in agreement that he should have non-custodial sentence. He is remorseful. Both he and the father were drunk – his father followed accused where he went to shelter. His father was the aggressor chasing him away from home. Accused is 1st offender. Has family, school going children, wife is house wife – ran away because of threats – she will come back of accused is released. He has apologized to the family. They have taken the apology. He cannot bring back his father – we pray since accused is remorseful – he be given a non-custodial sentence. The 6 years he had been in custody be treated as the custodial sentence****.*** I looked at the PSR: On the ***VIEWS OF THE VICTIM’S FAMILY*** *the report states:* *The secondary victims in this matter are mainly the mother and siblings of the offender. Social inquiry confirms that the offender has sought forgiveness from them an as the secondary victims after a family meeting they agreed that they forgive the offender but the family was divided as to whether to accept the offender back at home or no. only one family member supported a non-custodial sentence while the rest opposed and called for a custodial sentence. All the family members view the offender as a threat and the cited the fact that while the offender was being arrested he was still threatening them (they allege that when the offender was arrested he stated that if he had a knife he would have cut out the victim’s heart and that when he is back to the community he shall harm the rest of the family) and they believe that he is capable of carrying out his threats of harming them. As a family only the eldest brother of the offender supported a non-custodial sentence but he stated that since the rest of the family are for a custodial sentence then there is nothing he can do and that he respects the sentiments of the rest of the family that the offender should be sentenced to serve a custodial sentence albeit for a short period so that he can learn that his actions have consequences and also for their own safety as they currently view him as a threat.* From the community it was stated *The local administration were available for interview. They described the offender as someone troublesome within the community who is known to have a temper and violent. To them the offender should be sentenced to serve a custodial sentence so that he can learn a lesson and deter him from being violent in future. However, the offence occurred within the family and they believe that the rest of the family members as the secondary victims should have the final say as to whether they are ready to accept the offender back at home or not considering that if the offender is released he will go back home to his mother and siblings.* The PACS stated in conclusion *The family of the offender held a meeting and as a whole family, they view the offender as a threat and only one member of the family supported a non-custodial sentence while the rest opposed. The family therefore agreed that while they forgive the offender, that the offender should be sentenced to serve a custodial sentence so that he can learn a lesson and so that he can learn his actions have consequences****.”*** I have carefully considered the entirety of the circumstances of this case. The offender has sought plea bargain from the beginning and it has taken him a very long time. His family have forgiven him and that is very important, because there ought not to be any grudges. Of great concern: It is clear evidence that plea agreements have not been understood. The victims and the accused persons. That is work in progress. The justice agencies, PACs and the DPP must continue raise awareness. Regarding the accused: The manner in which he committed the offence, the reason for the offence is unacceptable. The mere fact that his father was telling him not to enter his land was no reason for him to go look for a weapon, a lethal weapon at that and shoot his father point blank. He could have gone to report to the elders or something less lethal as killing his father. Hence his culpability is raised by the fact that he was not acting in self defence, there is no evidence of provocation sufficient to lead to this kind of action. In the circumstances, the accused deserves a custodial sentence. The accused person is sentenced to 15 years’ imprisonment with effect from 3rd September 2020. **JUDGMENT** dated signed and delivered virtually at Kabarnet High Court on 31st July 2026 **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- Accused person Ms. Kerubo for Mongeri for accused Mr Kipkorir for Mr. Koech for State CA Momanyi/Gladys