[2019] KEHC 6810 (KLR)
The court found that, although the first accused appeared young and was still in secondary school, there was no evidence tendered to prove he was a minor under 18 years, and the trial court made no such finding. Both accused were treated as first offenders, with no previous convictions. The court considered the...
Source-derived case information.
- Citation
- [2019] KEHC 6810 (KLR)
- Parties
- Applicant: Republic; Defendant: DKK alias K; Defendant: David Kiplagat Chelule
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 8 of 2016
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Both accused persons sentenced to 20 years imprisonment each for murder.
- Judges
- GMA Dulu
- Legal Topics
- Murder, Sentencing Guidelines, Mitigation, Juvenile Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
DKK alias K
Defendant
David Kiplagat Chelule
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused persons should be sentenced to the mandatory death penalty for murder or a lesser sentence in light of recent jurisprudence.
- 2 Whether the first accused should be treated as a minor under the Children Act.
- 3 What mitigating factors should influence the sentence imposed on each accused.
Ratio Decidendi
The court found that, although the first accused appeared young and was still in secondary school, there was no evidence tendered to prove he was a minor under 18 years, and the trial court made no such finding. Both accused were treated as first offenders, with no previous convictions. The court considered the circumstances of the offence, including the brutality of the assault leading to the deceased's death, and the recommendations of the pre-sentence reports. In light of the Supreme Court's decision in Muruatetu, which allows for judicial discretion in sentencing for murder, the court determined that a custodial sentence of 20 years imprisonment for each accused was appropriate,...
Court Disposition
Both accused persons sentenced to 20 years imprisonment each for murder.
Orders
- Each accused to serve 20 years imprisonment.
- Right of appeal explained to both accused.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CRIMINAL CASE NO.8 OF 2016
REPUBLIC.....................................................................PROSECUTION
VERSUS
DKK alias K......................................................................1st ACCUSED
DAVID KIPLANGAT CHELULE...............................2ND ACCUSED
SENTENCE
1. The two accused persons have been convicted of murder. Since the prosecution cannot say that they have previous conviction, this court treats them as first offenders.
2. The first accused DKK alias K is said to be a minor, aged below 18 years. Evidence on his age was however not tendered before the trial court, and the trial court did not make a finding that he was a minor. Though he might appear to be young, the fact that he is still in secondary school is no proof that he is a minor aged below 18 years.
3. The pre-sentence report suggested a lenient sentence but indicated that there was still family animosity and that 1st accused may be harmed if released from custody now. With regard to the 2nd accused David Kiplagat Chelule, the probation report depicts him as a middle aged man of 45 years. Non-custodial sentence was not recommended.
4. Counsel for the accused Mr. Nyadimo in mitigation stated in court that the 1st accused be treated as a minor, and that any punishment be anchored under the provisions of section 190 and 191 of the Children Act No.8 of 2001, and that the 2nd accused be treated with leniency in sentencing.
5. I have considered the circumstances of the offence and the mitigating factors as well as the pre-sentencing reports. The mandatory statutory death penalty for murder has been varied by the Supreme Court in Francis Muriatetu -vs- Republic – Petition Nos.15 and 16 of 2015 and courts can now hand down any appropriate sentence taking into account the circumstances of the case.
6. The deceased was mercilessly beaten with a club and a stick by the two accused and he died. He had been assaulted earlier by watchmen and instead of sympathizing with him, they assaulted him, though he was drunk and they knew him well.
7. I sentence each of the accused to serve 20 years imprisonment. Right of appeal explained.
Dated at Kericho this 13th June 2019.
George Dulu
JUDGE