[2021] KEHC 3535 (KLR)
The court, after weighing both mitigating and aggravating circumstances, determined that a non-custodial sentence was appropriate. The mitigating factors included the accused being a first offender, her pre-trial custody period, her role as caregiver to a disabled husband and young children, and her heavy family...
Source-derived case information.
- Citation
- [2021] KEHC 3535 (KLR)
- Parties
- Applicant: Republic; Defendant: Christine Boit; Defendant: Kipkemoi Lomukuse; Defendant: Victor Argut; Defendant: Alfred Biwott; Defendant: Kipkemoi Sergon
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 12 of 2017
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- conditional discharge for one year under section 35 of the Penal Code, subject to no further offence being committed.
- Legal Topics
- Manslaughter, Sentencing Principles, Mitigation, Conditional Discharge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Christine Boit
Defendant
Kipkemoi Lomukuse
Defendant
Victor Argut
Defendant
Alfred Biwott
Defendant
Kipkemoi Sergon
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should receive a custodial or non-custodial sentence for manslaughter.
- 2 What mitigating and aggravating circumstances should be considered in sentencing.
Ratio Decidendi
The court, after weighing both mitigating and aggravating circumstances, determined that a non-custodial sentence was appropriate. The mitigating factors included the accused being a first offender, her pre-trial custody period, her role as caregiver to a disabled husband and young children, and her heavy family responsibilities. The aggravating factor was the loss of life of a young person due to assault. The court found that, in the interests of justice, a conditional discharge for one year under section 35 of the Penal Code was warranted, provided the accused does not commit another offence during that period. If she reoffends, she will be brought back for re-sentencing for manslaughter.
Court Disposition
conditional discharge for one year under section 35 of the Penal Code, subject to no further offence being committed.
Orders
- The accused is sentenced to a conditional discharge for one year under section 35 of the Penal Code.
- If the accused commits another offence within one year, she will be brought back for re-sentencing for manslaughter.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
CRIMINAL CASE NO. 12 OF 2017
REPUBLIC............................................................................................ODPP
VERSUS
CHRISTINE BOIT...............................................................1ST ACCUSED
KIPKEMOI LOMUKUSE..................................................2ND ACCUSED
VICTOR ARGUT.................................................................3RD ACCUSED
ALFRED BIWOTT..............................................................4TH ACCUSED
KIPKEMOI SERGON........................................................5TH ACCUSED
SENTENCE
1. I have taken into account that the accused is a 1st offender.
2. I have also taken into account that the accused was in pre-trial custody for eight months, which has to be taken into account in accordance with section 333(2) of the Criminal Procedure Code.
3. I have further taken into account that the accused takes care of her crippled husband who uses a wheel chair and is sickly suffering from arthritis.
4. Furthermore, I have also taken into account the accused has heavy family responsibilities of taken care of her eight children, four of whom are below 5 years.
5. I have not lost sight that a life of a 20 year old deceased has been lost. Additionally, I have taken into account that the deceased suffering assault wounds in the head, that caused his death.
6. The deceased although a habitual thief should have been arrested and charged in court.
7. After taking into account all the mitigating and the aggravating circumstance, I find that it is in the interests of justice that the accused should be sentenced to a non-custodial sentence.
8. In the premises, I sentence the accused to a conditional discharge under section 35 of the Penal Code for one year on condition that she commits no other offence.
9. If she so commits another offence she will be brought back for re-sentencing for this offence of manslaughter.
SENTENCE DATED, SIGNED AND DELIVERED IN OPEN COURT AT KABARNET THIS 29TH DAY OF SEPTEMBER 2021.
J M BWONWONG’A, J
29/9/21
In the presence:
Mr. Kemboi, Court Assistant.
Mr. Mongare for the Republic.
Mr. Kipkulei holding brief for Mr. Kemboi for the accused.