[2022] KEHC 1236 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL CASE NO. 29 OF 2013

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

VERSUS

HILLARY KOECH MAIYO......................................ACCUSED

RULING ON SENTENCE

[1] The accused, Hillary Koech Maiyo, was found guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Chapter 63 of the Laws of Kenya. He was accordingly convicted thereof. All that remains is for the Court to determine an appropriate sentence in his case.

[2] As has often been stated, the objective of sentencing is manifold. At page 15 of the Judiciary Sentencing Policy Guidelines, some of these objectives are set out as hereunder:

[a] Retribution: to punish the offender for his/her criminal conduct in a just manner.

[b] Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.

[c] Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.

[d] Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.

[e] Community protection: to protect the community by incapacitating the offender.

[f] Denunciation: to communicate the community’s condemnation of the criminal conduct.

[3] Hence, although Section 204 of the Penal Code stipulates that a person who commits the offence of murder shall be liable to death, it is not in every murder case that the penalty of death would be warranted. In Spence vs. The Queen; Hughes vs. the Queen (Spence & Hughes) (unreported, 2 April 2001) the Privy Council expressed the view that:

“In order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. There should be a requirement for individualized sentencing in implementing the death penalty.”

[4]In its Directions in respect of the Francis Muruatetu case the Supreme Court had occasion to reiterate the factors to take into account for purposes of sentencing in a murder. Thus, at paragraph 18(vii) of the Directions dated 6th July 2021, the Supreme Court listed the following considerations:

[a]Age of the offender.

[b]Being a first offender.

[c]Whether the offender pleaded guilty.

[d]Character and record of the offender.

[e]Commission of the offence in response to gender-based violence.

[f]Remorsefulness of the offender.

[g]The possibility of reform and social re-adaptation of the offender.

[h]Any other factor that the court considers relevant.

[5] Even where the Court is convinced that custodial sentence is the most appropriate, it is suggested, at Paragraph 23. 9 of the Judiciary Sentencing Guidelinesthat:

“The first step is for the court to establish the ... sentence set out in the statute for that particular offence. To enable the court to factor in mitigating and aggravating circumstances/factors, the starting point shall be fifty percent of the maximum ... sentence provided by statute for that particular offence. Having a standard starting point is geared towards actualizing the uniformity/impartiality/consistency and accountability/transparency principles set out in paragraphs 3. 2 and 3. 3 of these guidelines. A starting point of fifty percent provides a scale for the determination of a higher or lower sentence in light of mitigating or aggravating circumstances.”

[6] There is no doubt that the accused has been convicted of a heinous crime that attracts the death penalty as the maximum possible sentence. He has been found guilty of murdering his own cousin. However, it is also the case that he is a first offender. He was afforded the opportunity to address the Court in mitigation through his counsel, Mr. Komen. Counsel urged the Court to bear in mind the underlying land dispute between the families; and indicated the readiness on the part of the accused and his family to reach out to the deceased’s family for reconciliatory talks. He also mentioned that, if need be, the accused’s family is ready and willing to have him relocated to a different place of abode. Mr. Komen also pointed out that the accused was in Class 8 when the incident occurred; and that he has had to drop out of school by reason of his arrest and arraignment. In addition, Mr. Komen pleaded that the period spent by the accused in pre-trial detention be taken into account.

[7] The Court called for a Pre-Sentence Report as well as a Victim Impact Statement. The Pre-Sentence Report confirms that the accused was born in the year 1995; and that he had to abandon his educational pursuits on account of this incident. The report further reveals that, although his family has not initiated any reconciliatory talks with the victim’s family, they are prepared to pursue discussions with a view of ensuring peaceful co-existence between the two families. The report also confirms that the accused’s family is ready to relocate him to Chepkorio to obviate the possibility of his presence sparking negative emotions in members of the deceased’s family.

[8] It is nevertheless evident from the Pre-Sentence Report that efforts to reconcile the two families have not been fruitful; and that the family of the deceased perceive a lack of sincerity on the part of the accused’s family. Hence, the conclusion drawn by the Probation Officer was that he could not ascertain with clarity whether the accused would be safe for purposes of reintegration. He therefore proposed that the accused be dealt with as the Court deems fit.

[9]The Victim Impact Statement dated 25th February 2022 likewise shows that the deceased was a young adult who, after dropping out of school, was engaged in farming activities. His death has adversely affected his family psychologically as well as economically. It is further evident from the Victim Impact Statement that the deceased’s family members are concerned, and even bitter, by the fact that the accused’s family have not taken the initiative to pursue reconciliation.

[10] Thus, having taken all the foregoing factors into account, it is manifest that non-custodial sentence is not appropriate in the circumstances. I note that in Mathew Kiplalam Chepchieng v Republic [2019] eKLR in which a fight between two brothers ended up in the death of one of them, the Court of Appeal considered a term of imprisonment of 10 years to be reasonable in a case in which the accused pleaded guilty to the charge. In this case, I have taken into account the fact that the accused has been in custody since his arrest in 2013. Thus, he is hereby sentenced to 20 years’ imprisonment to be reckoned from the date of his arrest.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF MARCH 2022.

_______________________

OLGA SEWE

JUDGE