[2017] KEHC 3542 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCRC NO. 16 OF 2017

(FORMERLY ELDORET HCCRC NO. 37 OF 2013)

REPUBLIC..............................................................PROSECUTOR

VERSUS

HARRISON CHEBURET KINGOK................................ACCUSED

JUDGMENT

[1] The Accused who was originally charged with murder contrary to section 203 as read with 204 of the Penal Code later pleaded guilty to manslaughter following a plea bargain agreement, the factual basis of which as urged by the DPP and accepted by the Court was that the accused was provoked by the deceased brother leading to a fight in which the deceased was fatally injured.

[2] The accused was examined by a Psychiatrist and certified fit to plead. The Court was satisfied upon examination on oath of the accused that he had voluntarily entered into the plea bargain agreement reducing the charge from murder to manslaughter and his intention to plead guilty to the reduced charge.

[3] The facts of the case as set out by the Prosecution and accepted by the accused were that:

Facts

“The deceased and the accused herein are brothers. Both of them used to share the same house. On the 20th day of March 2013 at about 8. 00pm, the deceased was in the house with his friends drinking some alcohol.The Accused arrived while armed with a stick and kicked the door of the house forcing it open. They started arguing over the drinking as the accused never used to drink and was not happy with the deceased drinking in the same house where they shared. They started fighting and the deceased picked a hammer which he wanted to hit the accused with. The mother of the accused and the deceased was in her house preparing to sleep when she heard the accused push the door to her house. He got inside her house and then got out again. After about five minutes she heard screams coming from the house where her sons used to sleep. She rushed outside towards the said house and on the way she met the accused who was screaming saying “I have killed Henry Kipkonga”. At that time the accused was holding a panga and a torch which he had lit. She ran inside their house where she found the deceased lying inside the house with fresh wounds on the neck and in a pool of blood. She scream attracting neighbours and the chief who arrived and confirmed that the deceased was dead. The chief called the police who arrived and recovered a hammer which was inside the house and a panga which was smeared with mud outside the house.The police took the body to Kabarnet District Hospital mortuary. By that time the accused was nowhere to be found. The accused surrendered himself to Kabarnet police station later the same night where he was arrested.

Post morterm on the body of the deceased was done on the 27th March 2013 and the cause of death was established to be haemorrhage as a result of a deep cut wound in the neck to the right and multiple cuts in the hands.The accused was taken to court and charged with the offence of murder which has now been reduced to manslaughter. The accused person was thereafter presented before the doctor at Kabarnet District hospital for mental assessment who confirmed he was mentally fit to stand trial.

The accused person knowingly, voluntarily, and truthfully admits the facts contained herein. ”

The hammer which the deceased had; the panga which the accused used to cut the deceased; and the Post mortem examination report and mental fitness certificate for the accused were produced in evidence.

Conviction

[4] Having considered the accused’s acceptance of the facts, the Court accepted the accused’s plea of guilty and convicted him for the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code.

Sentence

[5] In mitigation, counsel for the accused urged as follows:

“Accused is sorry. He is a young man of 23 years. He has prospects of life as he wants to join college. Accused and Deceased were brothers. The killing was not intentional. He has been in custody for four (4) years since April 2013. We pray for leniency and non-custodial sentence.”

[6] The Probation Officer’s Pre-sentencing Report was positive for non-custodial sentence of Probation as follows:

Conclusion

“Your lordship, the youthful offender before court regrets committing the offence. Home report indicates that the accused was infuriated by deceased up becoming behaviour and his subsequent attempt to forcibly eject him out of the co shared cottage. It is probably for this reason that the accused took the law into his hands and fatally cut the deceased.

Having been subjected to the due process of law, the deceased parents and sibling has no reservations and has come to terms with the loss. If granted a chance to serve his sentence in the community, his family plans to enrol him to college to pursue his education.

Your lordship, given the offender’s age and the positive response from his immediate family, local administration leaders and the community, he may be accorded a chance on a non-custodial rehabilitation.

Recommendation

He is thus recommended for a Probation sentence for the period the honourable court deem fit. However, this is subject to court discretion.”

Long pre-trial detention.

[7] As this court has previously observed (Machakos HCCr.C NO. 14 of 2015, R v. Philip Muthiani Kathiwa) sentences of between 31/2 to 5 years have been held by the Court of Appeal to be suitable imprisonment terms for cases of manslaughter. See Andrew v. R (1976-1980) KLR 1688, Orwochi v. R (1976-1980) KLR 1638, and Muoki v. R(1985) KLR 323.

[8]I think that in the circumstances of this case, where the accused who did not drink was provoked by the deceased’s offensive conduct while drunk in trying to evict the accused from their shared cottage to make way for the deceased’s friends, thereby diminishing the accused’s blameworthiness for the ensuing fight leading to the deceased’s fatal injury. There was an element of self –defence in that it was he deceased who first took a weapon, a hammer, with which he wanted to hit the accused. The suitable sentence, in view of the accused’s young age with full prospects of life ahead, should be an imprisonment term of three (3) years to permit early re-entry into social life in his community. The Accused who is 23 years old has been in custody since March 2013, a period of 4 years. As the accused has already served in custody a period of over 4 years of pre-trial detention, the accused is entitled to be immediate release from custody.

ORDERS

[9] For the reasons set out above, having convicted the accused on his own plea of guilty to the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code, and having considered the facts of the case, I sentence the accused to an imprisonment for a term of three (3) years to be reckoned in terms of the Proviso to section 333 of the Criminal Procedure Code, from the date of his remand upon arraignment on 22nd March 2013.

[10] As the accused has served this three year sentence in full at the time of this Judgment, there shall be an order for his immediate release from custody unless he is otherwise lawfully held.

DATED AND DELIVERED THIS 12TH DAY OF SEPTEMBER 2017.

EDWARD M. MURIITHI

JUDGE

Appearances:

Mr. Tarus for the accused person

Ms. Macharia Ass Director of Public Prosecutions for DPP.