[2023] KEHC 23974 (KLR)

Republic v Chongwo (Criminal Case 9 of 2020) [2023] KEHC 23974 (KLR) (19 October 2023) (Sentence)

Neutral citation: [2023] KEHC 23974 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 9 of 2020

RB Ngetich, J

October 19, 2023

Between

Republic

Prosecution

and

John Cherutich Chongwo

Accused

Sentence

1. The accused John Cherutich Chongwo had been charged with the offence of murder contrary to section 203 and 204 of the Penal Code. The particulars of the charge being that the accused on the 24th day of May, 2020 at Kitiore village, Katyorin Location in Baringo North Sub- County within Baringo County the accused murdered one Sogome Chepkonga.

2. The charge was read over to the accused who denied and the matter was set down for full hearing. However, on the 30th June,2021 when the matter came up for hearing before Hon. Justice Justus Bwonwong’a, Mr. Kiptoo holding brief for the defence counsel Mr. Chebii served the Director of Public Prosecutions with proposal for plea bargain. The court directed that the matter be mentioned on the 14th July, 2021 to allow time for DPP to consider request for plea bargain.

3. On the 12th July,2023, the plea agreement was duly executed reducing the charge to manslaughter. On the 18th of July, 2023, the charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code and its full particulars were read over and explained to the accused who pleaded guilty and was convicted on his own plea of guilty.

Brief Facts Of The Offence 4. The facts surrounding the case are that on the 24th day of May, 2020 at around 4: 00p.m, one Veronica Chepchieng was at her home with her children when she heard some noise of someone hitting iron sheets from the home of her neighbor Mr. Mingwo. She checked what was happening at a distance of about 300 meters and saw the deceased Sogome carrying a sack containing her personal effects. She later saw the accused herein who is the son to Mingwo and nephew to Sogome following the deceased at a high speed while carrying a piece of stick in his hand. The accused got hold of the deceased and started beating her using the stick he was carrying. The deceased who was elderly was overpowered. She fell on the ground. The accused left her and proceeded to his father’s house and later to his house.1. The said Veronica together with other people went to where the deceased was and noticed the deceased was breathing very fast. She tried calling for help to take her to hospital but the deceased passed on while they tried to offer first aid. The accused was later arrested. Police officers from Kabartonjo visited the scene, processed, re-arrested the accused and escorted him to Kabarnet police station. The body was transported to Kabarnet referral hospital mortuary. Blood-stained stick suspected to have been used by the accused in committing the offence was recovered.

6. On the 28th day of May, 2020 Postmortem was conducted on the body of the deceased at Baringo County Referral Hospital by Dr. Kangor Boaz who formed the opinion that the cause of death was as a result of severe head injury secondary to head injury caused by blunt object.

7. Police file was compiled and the accused arraigned before court and charged with the offence of murder now reduced to manslaughter following plea bargain. The accused pleaded guilty to the charge and was convicted on his own plea of guilty.

Pre-sentence Report 8. The court directed pre-sentence report to be filed and the same was filed on the 18th day of June, 2023. From the report, the accused had formal education up to standard 8 and from the year 1993, he worked as a turn boy for a lorry within Nakuru and thereafter relocated to Mau Narok and started working as a farmer till his arrest. The accused is married and blessed with five children.

9. Social inquiry reveals that the accused and the deceased who happen to be his aunt were within the neighborhood taking local brew. A little confrontation ensued between them and the deceased started running towards her homestead with accused following her while armed with a rungu. He got up with her and hit her on the head leading to her death. The accused stated that he did it out of anger since the deceased had provoked him and he was under the influence of alcohol. The accused admits the offence as charged and prays for forgiveness and for a non-custodial sentence so that he can re-start his life afresh. Though he said he needs to attend to his school going children, social inquiry revealed that he is not married and has no children.

10. The accused’s family indicated that as a family they had a meeting with the deceased’s sisters and they all agreed that they have forgiven the accused and did not oppose the accused being given community-based rehabilitation indicating that the accused has been in custody for a period of 3 years and plans are underway for cleansing purposes. The family have a feeling that the accused committed the offence under the influence of alcohol and drug substances that they do not know. His brother is willing to stay with him upon his release at his home at Elburgon to facilitate his re-integration and resettlement.

11. The local administration indicated that the accused is well known to him though he has not been a resident of his location for more than 20 years; that he has stayed in the location for less than 6 months and committed the said offence and during that period, he overindulged in alcoholism and was always in conflict with the community members when under influence of alcohol. They are of the view that if granted community rehabilitation, it should not be within his locality; he should change residence.

12. The local administration from Mariashoni area, Molo sub-county where accused has resided for a long period said accused has been working as a farm hand within the community; he said accused is not a family man and he has no children. He never opposed the accused being granted community rehabilitation provided he has someone who will facilitate his reintegration and resettlement.

13. The probation officer recommends that the accused be granted 2 years probation sentence going by the positive sentiments from the accused’s family who have already forgiven him; their willingness to facilitate reintegration and settlement and there being no animosity at the family level and the community level.

Mitigation 14. The defence counsel Mr. Chebii mitigated on his behalf and submitted that the accused is remorseful for killing his aunt, he is first offender and prays for a non-custodial sentence. He submitted that the killing was not premeditated; that his mother and his aunt (deceased) fought and he took sides. He prayed for a non-custodial sentence and submitted that the accused has been in remand for 3½ years since 2020.

15. The state counsel Ms Ratemo submitted that she has had a chance to look at the pre-sentence report and left it for the court to determine the appropriate sentence.

Determination 16. Under section 205 of the Penal Code, a person convicted of Manslaughter is liable to imprisonment for life. However, the court has discretion to impose a lesser sentence depending on circumstances of each case.

17. I have considered the fact that accused is a first offender. I also note that accused is aged 53 years. I have also considered the fact that the family has since reconciled and have forgiven the accused. There is no doubt that the accused will live with the guilt of taking away the life of his aunt. The accused require counselling on how to deal with anger and to be rehabilitated to stop taking illicit brew. He is remorseful and has been forgiven by his family and in view of the above, I will impose lenient custodial sentence.

18. I note that accused was arraigned in court on the 24th day of May, 2020 and has remained in custody. As per section 333 (2) of the CPC, the accused is entitled to have the period reduced from sentence imposed

19. Final Orders: 1. Accused to serve 7 years imprisonment.

2. Period accused has been in remand to be reduced from sentence herein.

3. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNETTHIS 19TH DAY OF OCTOBER 2023. ........................................RACHEL NGETICHJUDGEIn the presence of:Mr. Kemboi - Court Assistant.Ms Ratemo for State.Accused present.No appearance for accused.