[2023] KEHC 25320 (KLR)

Republic v Kilel (Criminal Case 37 of 2016) [2023] KEHC 25320 (KLR) (14 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25320 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 37 of 2016

JK Sergon, J

November 14, 2023

Between

Republic

Prosecutor

and

Daniel Kimutai Kilel

Accused

Sentence

1. Daniel Kimutai Kilel the Accused herein, was charged and convicted with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that on 16th day of November, 2016 at about 2300 Hours at Chalule Village, Tabaita Sub-Location, Kaplelartet Location, Sigowet Soin Sub-County within Kericho County, the Accused murdered Gladys Chepkemoi Ngetich.

2. Upon convicting the accused for the aforesaid offence, this court directed the county Probation Officer to file a pre-sentence Report and also invited the Accused to make submissions in mitigation to guide the Court in determining the appropriate sentence to be meted out.

3. Mr. Koko Learned Counsel for the Accused, informed this court that the accused and the deceased were husband and wife, blessed with several children and further that since he was apprehended, the children have had no present parent and that the children had suffered a lot of trauma. The Learned Counsel submitted that the accused is remorseful for commission of the offence and has reformed and was therefore deserving of a second chance. The Learned Counsel presented a letter from the chief, a letter from the prison authorities and certificates obtained from various theological studies while in remand in support of the mitigation submissions. He urged the court to consider the principles of sentencing. He further urged the court to exercise leniency, consider a non-custodial sentence and release the accused to reunite with his family.

4. Mr. Musyoki Learned Assistant Director of Public Prosecutions submitted that the accused ought to be treated as first offender as he has no past criminal records of the Accused.

5. This court also called for a pre-sentence report. I have considered the pre-sentencing report prepared and filed by the Kericho County – Probation Officer. In the aforesaid report it is noted that the accused and his wife Gladys Chepkemoi, the deceased herein, lived harmoniously encountering normal family challenges which they would solve amicably and that they lived well for several years till the incident which cut off the wife’s life. The offender admitted that he would drink alcohol occasionally, however, his wife the deceased herein would imbibe alcohol more frequently which resulted in numerous disagreements between them. The offender and Gladys have three children. The probation officer noted that the children were living with different paternal relatives, they were left at a tender age on the demise of their mother and the consequent arrest of their father. It was also noted that the offender has been in custody since his arrest, his family members could not raise surety and bond him.

6. The offender narrated that on the material day, he had gone to the wife’s aunt compound demanding for his wife to return back home, it was late in the evening, the wife was drunk hence it was difficult for her to accompany her husband back home, the offender alluded to the fact that he was drunk when he made a wrong decision and stabbed his wife four times killing her. At the scene there were other people who tried to beseech him to stop stabbing the wife, however, he did not heed, he, instead committed the offence and fled the scene. He was subsequently arrested and charged with the offence of murder.

7. The offender was remorseful for the offence, he maintained that it was not premeditated, he had no plans to harm his wife rather he made a wrong decision while labouring in a compromised state of mind.

8. The family of the offender regretted the circumstances under which the offender cut short the life of the deceased. The family stated that on the material day, they took custody of the accused and surrendered him to the police station soon after he committed the awful offence. They were not happy with how the accused handled the wrangles between him and his late wife (the deceased herein), however, they urged the court to exercise leniency while sentencing him. They stated that they had been supporting the children left behind.

9. In the presentence report it was noted the family of the deceased reside in Bomet County and that probation officer was unable to contact them the offender and/or his relatives did not have their contacts, however, the offender alluded to fact that the mother to the deceased had expressed her forgiveness on the offender and requested the court to pardon him and allow him to take care of the children.

10. The community and local administration were opposed to a non-custodial sentence as the offender committed a heinous crime and further that at the time he committed the offence there were no subsisting wrangles between the accused and the deceased to warrant his unlawful action and in any event he had failed to report and/or seek for legal intervention.

11. The county probation officer considered the information given during the social inquiry, the nature of the offence, the circumstances of the offence and the wellbeing of the children who were under the care and control of supportive relatives. The probation officer was of the opinion that the offender was not suitable to benefit from a non-custodial sentence and therefore recommended that the court should exercise its discretion and/or order that the accused serve the statutory sentence prescribed in the penal code.

12. I have considered that the accused has been in custody for a period of six (6) years, eleven (11) months since his arrest and subsequent arraignment in court on 21st November, 2016.

13. Having considered the circumstances of the offence, submissions in mitigation and having further considered the contents of the pre-sentence report, it is apparent that in the circumstances of this case that a custodial sentence is appropriate.

14. Consequently, I hereby sentence the Accused namely: Daniel Kimutai Kilel to serve 8 Years imprisonment.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 14TH DAY OF NOVEMBER, 2023. …………….J. K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – Mr. MusyokiAccused – Present in PersonKoko for the Accused