[2022] KEHC 2197 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NUMBER 52 OF 2019

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

VERSUS

ISAAC LIMO KIPTEROI .........................ACCUSED

S E N T E N C E – R U L I N G

1. The accused person Isaac Limo Kipteroi was charged with the Murder of his brother William Kipteroi on 17th August 2019 Contrary to Section 203 as read with 204 of the Penal Code.

2. On 2nd February 2021 the accused entered into a Plea Agreement with the prosecution where he pleaded to the lesser charge of Manslaughter Contrary to Section 202 as read with 205 of the Penal Code.

3. The facts were that on the said date he and his brother the deceased were seated outside a shop, the shop owner heard them talking with the brother telling accused to answer some questions he had for him.

4. The deceased went and cut a stick from the nearby fence. A fight ensued when the accused failed to respond to the questions he had been asked. The deceased put panga aside and the two (2) fought with sticks, they began investing, and that is when the owner of the hotel heard the deceased shouting that he had stabbed him. He rushed to separate them, the accused hid behind a hotel then climbed on top of a tree. The deceased fell with blood gushing from his neck, he was taken to hospital where he died while undergoing treatment. The assistant chief of the area coaxed the accused to come down from the tree. He surrendered himself and the knife.

5. On post mortem cause of death was penetrating injury to the neck veins. The prosecution produced Post Mortem Report, the pen knife, exhibit memo, government analyst report.

6. Having pleaded guilty to both the charge and the facts the accused was convicted on his own plea of guilt. His counsel Mr. Terer mitigating on his behalf told the court that the accused was remorseful and sought the leniency of this court.

7. The state recommended twenty (20) years imprisonment. The accused recommended five (5) years imprisonment.

8. The report from Probation and After Care Services (PACS) indicates that accused was born in 1977, dropped out of school, and was a casual labourer. He indulged in the consumption of alcohol leading to marital conflicts, and the desertion of his wife from the matrimonial home.

9. The family of the accused is polygamous and the deceased was his stepbrother. The dispute they had was over some trees which accused wanted to fell in the family land.

10. The victims are yet to get over the death of their father and husband. The community recognized the accused as a person of high temperament, involved in several disputes that have been subjected to Alternative Dispute Resolution (ADR), their view is that he needs time to be rehabilitated from his violent behaviour. It is not lost to this court that in the accused’s family (house) they are only three; the accused, his brother (who is mentally unstable) and a sister who is married.

11. It is evident that there is a dispute over land, as the land is owned communally yet the family is polygamous. From the fact of the case and the report, it is clear that something to do with a dispute over the property, since their parents and said to be deceased.

12. It is therefore not a surprise that the family is reluctant to have the accused person back home. The Probation Officer cannot afford to leave this matter here because upon completion of his sentence, the accused will still go back home, and if the underlying reasons for this offence are not addressed then, the risk of re-offending another offence being committed is not far fetched.

13. Land is a very emotive issue, in the very recent past we have heard reports on the media of an offender who after fourteen (14) years in prison went home and killed relatives over land. As courts we must be dire to what is happening in our communities and for the need to have sentences that are meaningful that achieve as closely as possible the full range of the principles of sentencing.

14. How do you ensure that an accused person gets punished for what he did, gets psychological support to deal with his anger issues, and maintains close contact with the family for the restoration of family ties and reconciliation so that leaving prison is a transition. I think this can only come from a mindful sentencing process.

15. In his message as Chief Justice in the Sentencing Policy Guidelines Hon. Willy Mutunga stated;

“Sentencing impacts not just the individual offender but also the community and indeed the entire justice system.”

The guidelines;

“Seek to enhance the participation of the victim, generally in fuse restorative justice values in the sentencing process… champion the national value of inclusivity by promoting community involvement through the use of non-custodial sentences in suitable cases.”

16. Article 159(2) of the Constitutionprovides that (e) alternative forms of dispute resolution shall be promoted, the avoidance of prevention of conflict should be one way, sentences are expected to be deterrent, ili iwe funzo kwa wengine, but sentences can also be used to prevent conflict.

17. Article 165(3) of the Constitutiongives this court unlimited original jurisdiction in Criminal and Civil matters. The court is bound by the values and principles of our Constitution. In that regard the combined sentence would serve the interests of justice in this case.

18. Section 205 of the Penal Codeprovides that one liable for imprisonment for life.

19. In this case, the manner in which the offence was committed, the circumstances of the offence, and impact on the victims, calls for a ten (10) year term of imprisonment from the time of arrest. However the Probation and After Care Services is directed to continue working with the offender and his family to resolve the underlying issues. The last two years of the accused’s sentence shall be served on probation supervision. Hence the accused is sentenced as follows;

A term of eight (8) years imprisonment with effect from 26th August 2019 and two (2) years on Probation Supervision by PACS Nakuru upon release.

20. The in charge Nakuru Main Prison, and the County Probation Officer to be served with this order for compliance.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF FEBRUARY, 2022.

MUMBUA T. MATHEKA

JUDGE

In the presence of:-

Court Assistant Edna

For state: Ms. Murunga

For accused: Mr. Terer N/A

Accused: present