[2023] KEHC 25361 (KLR)

Republic v Kipcheu alias Alvestive (Criminal Case 9 of 2019) [2023] KEHC 25361 (KLR) (14 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25361 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 9 of 2019

RB Ngetich, J

November 14, 2023

Between

Republic

Prosecution

and

Rerimoi Kipcheu Alias Alvestive

Accused

Sentence

1. The accused had been charged of the offence of murder contrary to Section 204 as read with section 205 of the Penal Code. The particulars of the charge was that the accused person on the 24th day of September, 2021 at Kabel shopping Centre, Marigat Sub-county within Baringo County murdered Michael Chebureti Kimagal.

2. By a judgement delivered on the 20th day of July, 2023, this Honourable court found the accused guilty of the offence of Manslaughter contrary to section 202 of as read with Section 205 of the Penal Code and convicted him accordingly.

3. Upon delivery of the judgment the court directed that a pre-sentence report be filed. Presentence report was filed on by the probation officer. From the report, the accused was born in 1987 and had formal education up to standard 5 where he dropped out of school on his own volition and embarked on farming and later opened his own butchery business which he has operated to date. He is married and blessed with 6 children who have been under the care grandparents. From the report, the accused had also been taking care of his sister who is physically challenged.

Resentence Report 4. The accused sincerely regrets his action and regrets his actions and he is very remorseful. From the presentence report, the victim’s family indicated that they have forgiven the accused whom they confirm was a great friend to the deceased. They indicate that the two families have met for reconciliation process and hope to have more meetings to ensure they live in harmony. The area chief confirmed that he is aware of the reconciliation and is ready to support the two families whenever required. Report indicates the elders have met and resolved that the accused’s family give 2 cows and 2 bags of maize to deceased’s which have been given already.

5. The community’s sentiments are that the accused is a good person who blends well with the family and community, is the sole bread winner in his family, very responsible and are of the view that he be forgiven; they are willing to accept him back in the community so that he can take up his huge responsibility in the family which include taking care of his challenged sister. The probation officer recommends probation sentence for a period of 3 years.

Mitigation 6. The defence counsel Mr. Chebii mitigated on behalf of the accused. He submitted that the accused is remorseful, he is the sole bread winner of his family of 6 children, the wife having deserted the matrimonial home after his arrest. He further submitted that the accused is suffering from terminal illness (Hepatitis B) and has medical records to confirm that.

7. The defence counsel prayed for a non-custodial sentence so that the accused can be able to take care of his children who are now being raised by grandparents. He submitted that the accused has been in remand since 2019 a period of 4 ½ years which may be sufficient to allow him to rejoin the community.

Determination 8. Under Section 205 of the Penal Code person convicted of Manslaughter is liable to imprisonment for life. Life sentence has however been declared unconstitutional by the Court of Appeal in Malindi Criminal Appeal No.12 of 2021 Between Julius Kitsao Manyeso vs Republic The court has discretion to impose a lesser sentence depending on circumstances of each case.

9. From the brief facts of this case, the accused and deceased were drunk at the time of the offence and there is no doubt that the accused did not plan to kill the deceased who was his friend as shown by the presentence report. I take note of the fact that the family of the deceased and the family of the victim have reconciled. This has been confirmed by the local administration. They confirmed that the deceased’s family has been compensated by accused’s family who have given the victim’s family two cows and two bags of maize as compensation. I also take note of the fact that the accused has been in custody for over four years. In view of the above, I am inclined to impose non-custodial sentence.

10. Final Orders: -1. I hereby sentence accused to serve 3 years’ probation sentence.2. Right of appeal 14 days

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KABARNET THIS 14TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Chebii counsel for the AccusedKaranja CAMs. Ratemo prosecution counsel.