[2023] KEHC 26296 (KLR)

Republic v Kipkoech (Criminal Case E003 of 2020) [2023] KEHC 26296 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26296 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E003 of 2020

RL Korir, J

December 7, 2023

Between

Republic

Prosecution

and

Ronald Ngetich Kipkoech

Accused

Judgment

1. Ronald Ngetich Kipkoech (Accused) was charged 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 offence is that on 9th November 2020 at Tegat village, Tegat location within Bomet County murdered David Sang.

2. The Accused took plea on 21st February 2021 and denied the charge. The trial subsequently commenced on 6th March 2023 with PW1 and Pw2 testifying. PW1 was the deceased’s wife while PW2 was the deceased’s daughter. They told the court that the Accused was the nephew of the deceased and that the offence occurred in their home. After their respective testimonies, both the prosecution and defence counsel asked the court to adjourn the trial for them to explore plea negotiations.

3. A Plea Agreement was filed by the parties on 23rd October, 2023. The court accepted the said agreement after satisfying itself that the accused understood his trial rights as well as the process, and further that he had voluntarily executed the Plea Agreement.

4. The Accused took plea on the substituted charge and pleaded guilty. The facts of the case were read by the Prosecution counsel as follows; -“On the evening of 9th November, 2020 at about 1000pm, the deceased arrived home. He was visibly drunk. He found his family already asleep. He woke up his children. It is then that he noticed that one of his children one Sheila Chepkemoi Sang a 17-year-old had not shaved her hair as earlier instructed. He quarreled her. He threatened to shave it by use of a panga. He sent one of his children to fetch a panga. By use of the panga he attempted to shave the minors head. He then cut her left hand. The children raised alarm. Members of the public rushed to the scene. Accused was one of them. He deceased threatened to attack them. He accused then hit the deceased on his head by use of the wooden object. The deceased retreated into his house where he locked himself.The following morning on 10th November, 2020, at about 1000hrs, as his family went to check on him, they found him unconscious. They rushed him to Longisa referral Hospital and later to Tenwek Hospital where he succumbed to his injuries on 11th November, 2020 while undergoing treatment. The assault weapon was not recovered. On 17th November, 2020, a post mortem was performed on the body of the deceased at Tenwek Hospital and cause of death was ascertained as head injury with bleeding into the brain."The accused was later arrested arraigned in court and charged with murder which offence has now been commuted to a charge of manslaughter.

5. The Accused accepted the facts as true and was convicted on his on guilty plea for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The court directed the filing of a pre-sentence report and scheduled the sentencing hearing.

6. At the sentencing hearing on 16th November, 2023, the court received mitigation from Mr. Koske the learned defence counsel who stated that the Accused was 27 years’ old and was remorseful for the offence he committed. Counsel submitted that the offence occurred when the Accused went to the rescue of the deceased’s daughter whom the deceased had threatened to shave with a panga. That the Accused had no intention to kill the deceased who was his uncle.

7. Mr. Njeru Learned prosecution counsel submitted that the extended family except the wife of the deceased, had forgiven the Accused and indeed were present in court in their capacity as victims. The father of the deceased addressed the court and stated that the family had forgiven the Accused.

8. Sentencing serves an important purpose as stated in the Judiciary Sentencing Guidelines 2023 which outline the objectives of sentencing at paragraph 1. 3.1 as follows: -Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other- in so far as possible, sentences imposed should be geared towards meeting the objectives in totality.i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Community Protection.vi.Denunciation.vii.Reconciliation.viii.Reintegration.

9. In this case, the circumstances of the offence were rather astounding. The deceased arrived home late in the night and threatened to shave his daughter with a panga ostensibly because she had not had her hair shaven the way he wanted. When the wife and the children screamt, the accused a nephew responded. He did not stop at rescuing his cousin but went ahead to attack the deceased when the rest of the family fled. According to the family members he re-emerged from the deceased’s house saying that “Today the mzee has got what he wanted. I have finished for him.” To the mind of the court the statement implied that there might have been an underlying issue and that the deceased’s attack on his daughter provided the Accused the excuse to fight the deceased.

10. I have considered the pre-sentence Probation Officer’s Report filed on 2nd November, 2023. The Report stated that Accused came from a family that was given to aggressive behavior and violence. That the local administration cited extreme terms of domestic violence and abuse within the family and stated that one of the brothers to the deceased had just been released from jail after serving a cases of imprisonment for killing his wife. That the family did not take a serious view of the present case and had resumed normalcy.

11. A Victim Impact Statement was filed alongside the pre-sentence report. It stated that the deceased’s immediate family (wife and children were still grieving and that the death of the deceased had subjected them to extreme hardship and misery. That they believed the offence was intentional. They were however, the only family members who had not forgiven and reconciled with the Accused.

12. It was apparent from the Victim Impact Statement that the deceased’s immediate family had not reconciled with or forgiven the Accused. It was also clear from the Probation Report that violence seemed to be the order of the day in the extended family and that extreme violence was not unusual. This court is therefore minded to mete a sentence of deterrent effect.

13. I have considered the Accused was a young man aged 27 and that he saved judicial time by plea bargaining and has been in pre-trial custody since November 2020.

14. Taking into consideration all the above factors, I sentence the Accused to 12 years’ imprisonment. This sentence shall be deemed to run from his date of first arraignment being 9th November, 2020. Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 7TH DECEMBER, 2023R. LAGAT-KORIRJUDGE