[2019] KEHC 10441 (KLR)
The court found that, although the killing was premeditated, it occurred in the context of a spontaneous confrontation rather than as a result of a planned or particularly heinous act. The accused was a first offender, expressed genuine remorse, and had already spent four years in custody. The court determined that...
Source-derived case information.
- Citation
- [2019] KEHC 10441 (KLR)
- Parties
- Applicant: Republic; Defendant: Edward Kimutai Ngetich
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 128 of 2014
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- The accused is sentenced to ten years, with seven years in custody and three years under probation.
- Judges
- EM Ngugi
- Legal Topics
- Murder, Sentencing Principles, Mitigation, Premeditation, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Edward Kimutai Ngetich
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should receive a custodial or non-custodial sentence for the offence of murder.
- 2 What mitigating and aggravating factors should influence the sentence imposed.
Ratio Decidendi
The court found that, although the killing was premeditated, it occurred in the context of a spontaneous confrontation rather than as a result of a planned or particularly heinous act. The accused was a first offender, expressed genuine remorse, and had already spent four years in custody. The court determined that a custodial sentence was necessary to reflect society's condemnation and to deter similar conduct, but that the mitigating factors warranted a sentence less severe than life imprisonment. Accordingly, the court imposed a ten-year sentence, with seven years to be served in custody and three years under probation, taking into account the period already spent in custody.
Court Disposition
The accused is sentenced to ten years, with seven years in custody and three years under probation.
Orders
- The accused shall serve seven years in custody commencing today.
- The accused shall serve three years under probation commencing on the date of release from custody.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 128 OF 2014
REPUBLIC……………………………………………….PROSECUTOR
VERSUS
EDWARD KIMUTAI NGETICH………………....ACCUSED PERSON
SENTENCE
1. The Accused Person, Edward Kimutai Ng’etich , was convicted of the offence of murder vide a judgment dated 29/06/2018. He was found guilty of unlawfully, and with pre-meditation, killing Eric Kibet Kosgei on 19/12/2014.
2. The Accused Person pleaded not guilty and a fully-fledged trial ensued leading to his conviction.
3. The circumstances in which the offence was committed are contained in the judgment. Briefly, the Deceased and the Accused Person argued at a bar where the latter was drinking and the former had gone to buy cigarettes. The Deceased left the bar but the Accused Person followed him, threw a glass at him and the duel escalated from there. The Accused Person was then seen chasing the Deceased, cornering him and stabbing him in the chest. There is no question that the killing was pre-meditated.
4. During the sentencing hearing, Mr. Omutelema, State Counsel, informed the Court that the family of the Deceased was not desirous of addressing the Court. He informed that the Court that the Accused Person was a first offender. He had no view on the appropriate sentence.
5. The Accused Person, in mitigation, requested for non-custodial sentence. He expressed the wish to serve the community and his children. Padding the mitigation on his behalf, Mr. Magata, his Counsel, informed the Court that the Accused Person is 34 years old, and has a young family. The wife is not working and they have four children. Further, Mr. Magata informed the Court that the Accused Person is deeply remorseful.
6. I have carefully considered all the factors in his case on an individualized basis as I am required to do. I have considered the following four mitigating factors.
7. First, the Accused Person the Accused Person is a first offender.
8. Second, the Accused Person expressed remorse. I formed the opinion that he was sincere in his remorse.
9. Third, I have also considered the circumstances in which the offence was committed as a mitigating circumstance. While there was premeditation as defined by law, it is true that the homicide was not an act of wanton and senseless violence but was part of a confrontation between the Accused Person and the Deceased. The violence was spontaneous and was not planned over time and orchestrated. Further, the killing was not undertaken in any particularly heinous or depraved fashion.
10. I have not found any aggravating circumstances.
11. In this case, I have come to the conclusion that some measure of custodial sentence is merited as the only suitable way of expressing society’s condemnation of the Accused Person’s conduct or deter similar conduct in the future. Having considered all the mitigating circumstances and aggravating circumstances, and considering the four years the Accused Person has been in custody during the pendency of the trial as I am required to do under section 331 of the Penal Code, I am of the view that a sentence of ten years is the appropriate sentence. The ten years sentence will be served as follows:
a. Seven years will be served in custody commencing today; and
b. Three years will be served under probation commencing on the date the Accused Person will be released from custody.
12. Orders accordingly.
Dated and Delivered at Nakuru this 15th day of January, 2019
………………..
JOEL NGUGI
JUDGE