[2023] KEHC 23476 (KLR)

Republic v Kilangat (Criminal Case 19 of 2020) [2023] KEHC 23476 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23476 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 19 of 2020

RB Ngetich, J

October 12, 2023

Between

Republic

Prosecution

and

Alex Kiprop Kilangat

Accused

Ruling

1. The accused Alex Kiprop Kiplangat had been charged with the offence of murder contrary to section 203 and 204 of the Penal Code. The particulars of the charge being that the accused on the 6th day of May, 2020 at Kapkalelwa South Village, Emom Location in Baringo Central Sub- County within Baringo County at around 1600hrs the accused murdered one Kiplangat Cherutich Ruto.

2. The charge was read over and explained to the accused who denied and the matter was set down for full hearing. However, when the matter came up for hearing before Hon Justice Weldon Korir on the July 27, 2022, Mr Kipkulei who was holding brief for the defence counsel Mr Mongeri informed the court that the accused had expressed his wish to pursue plea bargain and the matter was set down for mention on the October 17, 2022 for the parties to report back to the court on the progress of plea bargaining.

3. On the 11th day of July, 2023, plea agreement was duly executed. The charge was reduced to manslaughter and the charge and its particulars read over and explained to the accused who pleaded guilty to the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. He was convicted on his own plea of guilty.

Brief Facts of the Offence 4. Brief facts surrounding the case is that the accused and his father (deceased) had planned to make a fence round their shamba and had prepared traditional brew for the people who were to help in making the said fence. After completing the work, people left for their respective homes leaving the accused and the deceased sharing brew that was left. They kept the brew in the house and parted ways. The accused went to fetch firewood and the deceased went to look for mushroom for a meal but when they returned, they never found the brew they had shared and kept in the house.

5. The deceased claimed that his son (accused) had taken his share of the brew while the accused argued that he did not know where the brew had gone; the wrangle escalated prompting the accused to pick a piece of wood and beat up the deceased until he became unconscious.

6. One Irene Chephirchir who was on her way home heard banging sounds which made her curious to find out what was happening and on getting closer, she heard a person moaning and on further checking, she saw the accused beating his father (deceased) with a piece of wood. She confronted the accused but the accused turned on her and chased the said Irene while holding the stick which he had used to beat the deceased.

7. She screamed and her screams caught the attention of Musa Kigen who was in the shamba. She informed him what had happened. The accused run on seeing the said Musa but Musa ran after him and caught up with him, tied him up using a rope then proceeded to where the deceased was lying. He tried to help the deceased rise up but he noticed he was unconscious. He called the Assistant Chief one Erick Kiplagat and informed him. The Assistant Chief informed the OCS Kabarnet Police station and organized for the deceased to be taken to hospital by informing Stanley Ruto who then contacted his neighbour who had a vehicle. Stanley arrived at the junction and met the assistant chief in the company of some members of the public. The accused was taken to Tenges police station while the deceased was taken to Tenges dispensary where he was later referred to Eldama Ravine Sub-county Hospital but he succumbed to the injuries on the way to Hospital.

8. Stanley informed the family of the deceased who went to help him take the body of the deceased to Eldama Ravine mortuary. Police officers visited the scene, documented the scene and collected a piece of wood that was kept as exhibit. The accused was picked on the same day from Tenges police station. Postmortem was conducted on the May 11, 2020 at Eldama Ravine Hospital by the pathologist who formed the opinion that the cause of death was a result of hypovolemic shock from hemorrhage into the chest cavity and abdominal cavity resulting from rib fractures and liver lacerations due to blunt trauma. Investigations were concluded and the accused was charged with the offence of murder now reduced to manslaughter following plea bargain.

Pre-sentence Report 9. The court directed that a pre-sentence report be filed and the same was filed on the September 18, 2023. From the report, the accused prays for a non-custodial sentence stating that he wishes to rebuild his life since the non-custodial sentence would enable him bring back his wife and children to provide for them so as to secure their future. He regrets committing the offence and said he was under the influence of alcohol at the material time.

10. The local administration stated that the family of the accused has shown interest in forgiving the accused but never gave a final decision on what they decided as a family. As the local administration, they do not oppose a non-custodial sentence stating that the offender had been of good behavior prior to the incident and had been living peacefully. The local administration belief that the offence was as a result of alcoholism and if the deceased’s family decides to forgive the accused, then they will support the decision.

11. From the report, the extended family tasked the members of the nuclear family of the deceased to talk about the matter and determine whether they were willing to forgive the accused since members of the extended family had no problem with the accused.

12. The eldest brother of the accused stated that they had a meeting as a family and they resolved to forgive the accused and have him back home. He stated that as a family, they pray that the offender be sentenced to serve a non-custodial sentence on ground that there is no animosity within the family and a non-custodial sentence would enable the accused to take care of his children and they will carry out cleansing where the whole family will be involved.

13. The probation officer recommends that the accused may be sentenced to serve 2 years’ probation term during which period he will be guided on conflict resolution and any other assistance he will require but that is subject to the honourable court’s discretion.

Mitigation 14. The defence counsel Mr Mongeri mitigated on his behalf and informed the court that the accused is a first offender, he is remorseful and the offence was committed while he was drunk and the accused regrets committing the offence and promises not repeat again.

15. The defence counsel further stated that the accused has been in remand since May 6, 2020 and the accused has reconciled with his siblings and parents and they are ready to accept him and counsel him. He urged the court to consider the accused’s plea and the report which recommends a non-custodial sentence.

Determination 16. Under section 205 of thePenal Codea person convicted of Manslaughter is liable to imprisonment for life. However, the court has discretion to impose a lesser sentence depending on circumstances of each case. I have the accused’s mitigation, the fact that he is a first offender.

17. I note from the report that the accused’s family who are victims have forgiven him for killing his father. The community is also willing to accept him back.

18. In view of the above, I find probation sentence appropriate to the accused. While on probation, he will benefit from counselling to manage anger and how to resolve dispute in an amicable manner.

Final Orders: - 1. Accused is hereby placed on probation for a period of two years.

2. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 12TH DAY OF OCTOBER 2023. …………….……………………RACHEL NGETICHJUDGEIN THE PRESENCE OF:MR. KEMBOI & MR. MOMANYI - COURT ASSISTANTS.MR. MONGERI FOR ACCUSED.ACCUSED PRESENT.MS RATEMO FOR STATE.