[2022] KEHC 1705 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NUMBER 61 OF 2014

REPUBLIC.......................................................................................ODPP

VERSUS

DENNIS KIPROTICH CHEPKWONY.................................ACCUSED

S E N T E N C E – R U L I N G

1. The accused person was charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on 7th May 2014 at Timbwalo Village, Tinet Location, in Kuresoi South District within Nakuru County he murdered David Kipyegon Chirchir.

2. He denied the charge. After a full trial, on 8th February 2022, this court found that the prosecution had established the charge of Manslaughter Contrary to Section 202 as read with 205 of the Penal Code. The accused was found guilty and convicted of that offence.

3. The prosecution submitted that he was a first offender.

4. In mitigation Ms. Mungai for accused submitted that the accused is thirty-five (35) old with two (2) wives and seven (7) children aged between two (2) years and eleven (11) years; five (5) of whom were school going. She submitted that the accused had lost her parents at thirteen (13) years old. As the first born dropped out of school at class eight to fend for his four (4) siblings. That he is the sole bread winner of his family. In addition that he is a responsible member of the community as Nyumba Kumi Mzee. That he was remorseful and that he never intended to harm the deceased. He sought for a non custodial sentence.

5. I sought a Pre-Sentence Report. One was filed on 22nd February 2022 by Probation and After Care Services (PACS) Nakuru. I noted that it did not bear a Victim Impact Statement, and no explanation was contained in the report for that omission. I brought this to the attention of the Probation Officer, and give him a further week to avail the same. A report was filed and presented to court on 8th march 2022. As I write this Ruling I perused the report and it was the exact copy of the report of 22nd February 2022.

6. It is evident that the PACS officer did not interview the victim(s) of the offence for whatever reason, and if so the details of the views of the victim(s) were not indicated in the report. Be that as it may, a further referral may not make any difference. I will pick the one sentence in the report that makes reference to the victim, where the report states;

“Victim in this case was accused neighbour who can be described as sworn enemy…. I interviewed family members who included the accused wives, victim’s brother and cousin…”

7. First of all, the wives of the accused person are not the victims of the offence as envisaged by the Criminal Procedure Code. Then the report does not state what these people who were interviewed said to the officer that would affect the sentencing of the accused person. I take issue with the manner in which the officer has ignored the issue of the victims and how this offence imparted on her. Why did the Probation and After Care Services office not interview the widow/children of the deceased?

8. The Probation and After Care Services officer is expected to take a neutral place with respect to the accused and victims without any explanation in the report as to why the victims were not interviewed the report is not balanced.

9. Nevertheless, I have considered that the accused is a first offender. He was in custody from 9th May 2014 to 16th March 2016 when he was released on bond. Hence he spent close to two (2) years in remand custody before he was released on bond. This case has been in court for the last eight (8) years and the accused person has come to court as and when required. These are not factors the court can ignore in considering the sentence. It goes without saying that both the accused and the family of the deceased have waited long for justice. Having a murder charge on your head for that period must be some punishment, and though not the same waiting for the matter to be finalised must be full of anxiety for the family of the deceased.

10. I have noted that the accused person has been in the community since he was released on bond. The family of the deceased are his neighbours. Other than the statement that the victim’s family is a sworn enemy of the accused no evidence came from the community and the community leaders of the actual existence of bad blood, and no incidents have been reported in the Pre-Sentence Report to support this, but what is clear is that the accused and family of the deceased have not gone through the reconciliation process. This, in my view is something that the Probation and After Care Services can work together with the Alternative Justice Systems (AJS) Committee Nakuru post conviction, to ensure that neighbourly ties are restored and maintained, and further conflict prevented. This should assist to remove the log “sworn enemy” tag from the family of the deceased, as maintaining that would be recipe for future conflict, yet for justice to have been done, the threat of future conflict from this incident should be dealt with once and for all.

11. This would work well where the accused is serving a non -custodial sentence, and the circumstances of this case call for such a sentence.

12. The accused is sentenced to serve three years on Probation Supervision.

13. The Probation and After Care Services Nakuru to work together with the AJS Committee Nakuru, the two families involved in this case, to restore and maintain the neighbourly ties between the accused and the deceased’s families.

14. The accused person to comply with the directions of the Probation Officer on this aspect.

15. The order be served on Probation and After Care Services and the AJS Committee Nakuru for compliance.

16. A progress report be filed with the Deputy Registrar within six (6) months hereof.

17. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MARCH, 2022.

MUMBUA T MATHEKA

JUDGE

In the presence of;

C/A Edna

For state Murunga

For accused Ms Mungai

Accused present