https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9802

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CRIMINAL CASE NO. E037 OF 2022** **REPUBLIC…………………………………………………………………….PROSECUTION** **VERSUS** **JOHN KIPCHIRCHIR ………………………………………………………….1ST ACCUSED** **DAVID KOSGEI ………………………………………………………………..2ND ACCUSED** **ALLAN RONO KIPKORIR…………………………………………………….3RD ACCUSED** **RULING ON SENTENCE** 1. The accused persons were jointly charged with the offence of offence of murder contrary to **Section 203** as read with **Section 204** of the **Penal Code**. The particulars were that on 21/11/2022, at Bukwa sub-Location, Turbo Sub-County, within Uasin Gishu County, they jointly and unlawfully caused the death of **Samwel Kiprotich Lagat**, their own brother. 2. **Mr. Songok** represents the 1st accused, **Mr. Oyaro** represents the 2nd accused and **Mr. Mathai** represents the 3rd accused. **Prosecution Counsel** **Ms. Muriithi** appears for the State. 3. The accused persons pleaded not guilty but subsequently entered into plea bargain discussions with the State, which eventually culminated into the respective Plea Bargain Agreements dated 14/06/2024, which indicated that the accused persons had each agreed to plead guilty to the lesser charge of Manslaughter, and to let the Court determine the sentences. 4. The matter then came up for plea bargain hearing on 17/12/2025. The accused persons were sworn under oath, and after examining each one of them, I recorded my satisfaction that **Section 137F-137G** of the **Criminal Procedure Act**, governing the plea bargain process had been complied with, that the accused persons had signed the agreement together with their respective Counsel, voluntarily, and without any coercion, and that they fully understood the effect thereof. I thus allowed the accused persons to take fresh pleas, now on the fresh charge of Manslaughter contrary to **Section 202** as read with **Section 205** of the **Penal Code**, which they did, and upon which they each then pleaded guilty. The statement of facts of the case (factual basis) was then read out to the accused persons, basically as follows: ***“The deceased was a brother to the accused persons. The deceased had, on 21/11/2022 at around 1100 hrs, engaged in a squabble with his sister-in-law about a debt about plaiting of the deceased person’s wife’s hair. The accused persons came to know of the altercation and confronted the deceased who responded angrily, and assaulted the 1st and 2nd accused using a slasher. The 3rd accused came from Nakuru on the same day and was informed by the 1st and 2nd accused about what had happened. They plotted to attack the deceased to teach him a lesson and later attacked him using crude weapons causing him serious injuries. The accused persons later rushed the deceased to hospital where he died. In view thereof, the accused persons were charged with murder which has now been reduced to manslaughter.”*** 1. Prosecution Counsel then produced the Post Mortem Report dated 28/11/2022, 3 stones and a stick referred to above, as exhibits. 2. When asked to confirm or refute or comment on the correctness of the said facts as read out, the accused each confirmed the same as being correct and true. Satisfied that the statement of facts read out disclosed sufficient factual basis for the charge, this Court accordingly convicted the accused on the offence of Manslaughter on his own plea of guilty. 3. Regarding the sentence to be meted out, I directed that respective Pre-Sentence Reports relating to the accused persons be prepared and filed. While **Mr. Songok** and **Ms. Nekesa** (holding brief for **Mr. Oyaro**) for the 1st and 2nd accused persons, and **Ms. Muriithi**, for the State, all opted to submit in mitigation before filing of the Pre-Sentence Reports, **Mr. Mathai** for the 3rd accused, opted to wait for the Reports before submitting on mitigation. 4. **Mr. Songok** then submitted that the 1st accused is a first offender, that the accused persons took the deceased to hospital when they realized the consequences of their action, and that all they wanted to do was to “teach the deceased a lesson”. He contended that the deceased had committed an aggression out of a minor family dispute and injured the 1st and 2nd accused using a slasher, thus it was only a retaliation as the deceased was the initial aggressor, and that the 1st accused is very remorseful and regrets the action. He asserted that the accused persons have throughout fully co-operated with the authorities, that cleansing has been conducted under their culture, and they request for forgiveness under the “***Kipkaa***” ritual of the Kalenjin. He therefore urged the Court to cultivate family re-integration as the community has embraced the accused persons. Counsel also pointed out that the Plea Agreements asks the Court to consider the period the accused has been custody, noting that they have been in remand throughout the trial, and that the Plea Bargain Agreement proposes 3-5 years in prison, part of it to be served under a non-custodial nature. He also submitted that the 1st accused is presently 28 years old, he has two children aged 7 and 2 years, and also has a wife. 5. On her part, **Ms. Nekesa** submitted that the 2nd accused is very remorseful especially because the deceased was his brother, and by entering into the Plea Bargain Agreement, has saved the Court’s time. She submitted that while in prison, the 2nd accused has reformed, he has a wife and 2 children for whom he is the sole breadwinner. Counsel prayed for mercy and a non-custodial sentence for the 2nd accused urging the Court to take into account the period he already spent in custody. She also pointed out that the 2nd accused is presently 39 years old. 6. The 3 respective Pre-Sentence Reports were then subsequently prepared and filed on 27/02/2026. The Report relating to the 1st accused is dated 25/02/2026, the one relating to the 2nd accused person Report is dated 26/02/2026, while the one relating to the 3rd accused is also dated 25/02/2026. They are all prepared by the Probation & Aftercare Service (Uasin Gishu County Office) and are indicated to have been compiled after perusal of the Court file and police file, and also interviews with, ***inter alia***, the accused, their family members and relatives, neighbours, and the local administration. 7. **Ms. Muriithi** then informed the Court that there were no previous criminal records relating to the accused persons hence they could be treated as first offenders. 8. **Mr. Mathai**, on behalf of the 3rd accused, submitted that he is 29 years old, a father of 3 children aged between 6 and 1 year who are fully dependent on him, he is remorseful and took the path of reconciliation and apologized, which was accepted, and he was forgiven, and has connected well with the community. Counsel then prayed for leniency and a non-custodial sentence, pointing out that although the 3rd accused is presently out on bond, he had spent about 3 years in custody since he was arrested in 2022 and was only granted bond in 2025. **Determination** 1. The applicable law on sentence for the offence of Manslaughter is **Section 205** of the **Penal Code** which provides as follows: **“Any person who commits the felony of manslaughter is liable to imprisonment for life”** 1. In determining the appropriate sentence to impose, I take into account the Supreme Court decision in thethe case of **Francis Karioko Muruatetu & Another v Republic [2017] eKLR)** in which it guided that, in sentencing, the following mitigating factors would be applicable;**(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;** and, **(h) any other factor that the Court considers relevant.** 2. Similarly, the Court of Appeal, in the case of [**Daniel Kipkosgei Letting Vs. Republic**](http://kenyalaw.org/caselaw/cases/view/215923/) **[2021] eKLR**, pronounced as follows; **“With regard to the above, we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..”** 1. Further, **Majanja J**, in quoting **Francis Karioko Muruatetu (supra)**,in the case of **Michael Kathewa Laichena & another v Republic [2018] eKLR***,* stated as follows: **“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………”** 1. I note that in the Plea Agreement, the State proposes a prison sentence of 3-5 years less the time spent in custody, while the Defence proposes initial imprisonment for 3 years followed by a non-custodial sentence of 1 year. 2. With the above guidelines and submissions in mind, I have considered the manner in which the offence was committed, the circumstances whereof are that it was a result of a minor family quarrel involving the 4 brothers (accused persons and deceased) arising from an earlier altercation between the deceased and his sisters-in-law, wives of the accused persons. The indication is however that the accused persons may have only wanted to “teach the deceased a lesson” or “discipline” him for disrespecting them and their wives. Clearly, the death does not seem to have been intended but a result of overzealous “avengers”. 3. I have also considered the findings and recommendations of the respective Pre-sentence Reports. The salient observations I make therefrom include that the accused persons have no history of hostility within the family and community, and are remorseful as evidenced by their entering into the plea bargain. Members of the local administration are also said to have stated that the accused persons have not previously been into conflict with the law, and recommended leniency and non-custodial sentences, considering the steps taken towards reconciliation, including subjecting themselves to cleansing by way of cultural reconciliation rituals. 4. The above observations, coupled with the fact that the accused persons entered into the plea bargain deal, thus saving precious judicial time, amount to mitigating factors which ought to have a bearing on the sentence to be imposed. 5. There are however obvious serious aggravating circumstances. For instance, the Post-Mortem Report paints a grim picture of a vicious, merciless and violent attack as indicated by the extent of injuries suffered by the deceased. According to the Pathologist, the body showed a swollen face with blood oozing through the nostrils, and on dissection, the head was found to have had “***massive scalp haematoma on the right side*** ***with*** ***skull fractures on the right side*** ***exposing brain matter***”. The cause of death is then described as “***blunt head injury***. The extent of these injuries demonstrates that the accused persons employed a degree of violence that was fundamentally disproportionate and excessive. What the accused rendered upon the deceased was nothing but “mob justice”. Despite having the option of settling the issue amicably which could have neutralized the tensions, they chose violence whose consequences they are expected to have known, could result to the worst, as it in fact did. 6. In the circumstances, I find that non-custodial sentences would not be appropriate in this case. The accused persons killed their very own brother through useless and rash anger. The Court must reiterate that it is not acceptable to take a human life extra-judicially, whatever the circumstances or level of provocation. I will therefore impose a prison sentence but since I find no indication that the 1st and 2nd accused persons were at any point released on bond or bail since their arrest after the incident, in accordance with the provisions of **Section 333(2)** of the **Criminal Procure Code**, the period that they will serve the prison term shall be mitigated as a result of consideration of the period they already served in remand custody. I also note that although the 3rd accused is currently out on bond, he was only released from remand custody on 28/07/2025. **Final Orders** 1. In circumstances, I make orders as follows: 2. I hereby sentence the accused persons, **John Kipchirchir, David Kosgei** and **Allan Rono Kipkorir** to each serve **five** **(5) years** imprisonment. 3. In computing the respective terms to be served in prison, the period already spent by the accused persons in custody during the trial, shall be deemed as already served portions of the prison term, as follows: 4. For the 1st and 2nd accused, the period already served is from the date of their arrest, namely, 19/12/2022 as indicated in the charge sheet. 5. For the 3rd accused, the period already served is between 19/12/2022 (date of arrest) and 28/07/2025 (date of release on bond/bail) 6. Right of appeal within 14 days is hereby explained to the accused persons. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026** **……………..……..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Accused person all present physically in Court** | | | **N/A for the accused person’s Advocates** | | | **Ms. Muriithi for the State** | | | **Court Assistant: Brian Kimathi** | |