[2023] KEHC 26910 (KLR)

Republic v Kipkoech alias Nicholas (Criminal Case E003 of 2022) [2023] KEHC 26910 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26910 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E003 of 2022

RL Korir, J

December 15, 2023

Between

Republic

Prosecution

and

Bismack Kipkoech Alias Nicholas

Accused

Judgment

1. Bismack Kipkoech Rono (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 8th January 2022 at Morit village, Chesoen location Bomet Sub – County, within Bomet County murdered Vincent Kiplangat Mutai.

2. The Accused took plea on 26th January, 2022 and denied the charge. The case went to pre-trial and was scheduled for hearing. Subsequently parties asked the court to adjourn the trial pending their plea negotiations.

3. A Plea Agreement was filed in court on 24th October, 2023 the court accepted the Plea Agreement after satisfying itself that the Accused understood his trial rights, the plea negotiation process and had voluntary executed it.

4. The Accused subsequently pleaded guilty to the substituted charge. Prosecution Counsel read the facts as follows: -“On 8th January, 2022, the Accused Bismark Kiprotich Rono alias Nicholas at Morit village, Chesoen Location in Bomet County murdered Vincent Kiplangat Mutai.On the 8th day of January, 2022 at around 1930 hours at Morit Village, Chesoen Location in Bomet County, at a footpath connecting the deceased parents’ home and his home, a fight ensued between the Accused and the deceased. It is a result of this fight that the Accused sing a sharp object inflicted deep cuts on the cheek and on the forehead of the deceased which led to excessive bleeding and eventuality death.A postmortem was conducted on the body of Vincent Kiplangat Mutai at Longisa Referral Hospital where the autopsy indicated that the deceased died due to excessive bleeding.Immediately after the incidence, the Accused surrendered himself to Bomet police Station fearing for his life. He was later arraigned in court with charge of murder and which offence has now commuted to a charge of Manslaughter.”

5. The Accused accepted the facts as true and was convicted on his own plea of guilty.

6. At the sentencing hearing on 16th November, 2023, Mr. Barusei learned defence counsel submitted that the defence had filed written mitigation. The Accused also asked the court to consider the additional submission he had filed directly.

7. Mr. Njeru the learned prosecutor submitted that the Accused was a first offender. He asked the court to impose a custodial sentence. That the probation report showed that the Accused was an alcoholic and caused the death of a young man.

8. A probation report dated 14th November, 2023 was filed on 15th November, 2023. The report states that the Accused’s family were still confounded by the incident and desired to seek forgiveness and reconciliation from the victim’s family. They prayed for a lenient sentence.

9. With respect to the victims, the report states that they were traumatized by the brutal manner in which the deceased died and also by the fact that he had died before bearing children. They had not come to terms with their loss and desired that the Accused be punished.

10. The local community was reported to have known both the Accused and deceased to be alcoholic who fought whenever they were drunk. The local administrators and community leaders were of the opinion that a deterrent sentence was merited.

11. In written submissions filed on 11th November, 2023, defence counsel stated that the Accused was a first offender who greatly regretted the incident. That he was a young man aged 21 whose family was willing to assist reintegrate back in society. That the family of the Accused was willing to pursue reconciliation. Counsel prayed for a non-custodial sentence and relied on Republicvs Ezekiel Lokatukon 2021 eKLR where the convict was sentenced to 7 years’ imprisonment.

12. The Accused handed to the court additional submissions which he asked the court to consider. He stated in his direct submission that he was only 21 years’ and pleaded for leniency. That he was the bread winner of his family where his mother and siblings depended on him. He submitted that he had fully reformed having undertaken bible studies in prison and got born again. That he had also undertaken his studies and even sat his Kenya Certificate of Primary Education (KCPE) in prison and was looking forward to joining secondary school. He attached documentary evidence in form of religion testimonials showing that he had attended various bible courses.

13. This Court is guided by the objectives of sentencing as set out in the Judiciary Sentencing Policy Guidelines 2023 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.

14. This court is guided by the objectives of sentencing as set out in the Judiciary sentencing Guidelines 2023 paragraph 1. 3.1. They include retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. In R vs Scott(2005) NS WCCA 152, Howie J. Grove and Barn JJ stated that: -“There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crimes committed. . . . one of the purposes of punishment is to ensure that an offender is adequately punished. . . a further purpose of punishment is to denounce the conduct of the offender”

15. I have considered the Probation Officer’s Report. The report sheds light on the relationship between the deceased and the Accused. They were in law’s. the deceased was the brother-in- law of the Accused’s father meaning the Accused was the nephew of the deceased’s wife.

16. There was no reason given in mitigation to explain why the Accused viciously attacked the deceased killing him. I have considered that the Accused was a young man aged 23. From his submission, he was now transformed.

17. I have considered the victim impact statement already stated above. It was clear that the victims were crying for justice having lost their loved one to a senseless killing. There was also no reconciliation as yet.

18. I have however considered that a life was lost and for no good reason. It is my considered view that the Accused shall benefit from a rehabilitative custodial sentence. The Accused shall serve 10 years’ imprisonment. This sentence to run from date of arrest and pre-trial custody being 18th January, 2022. Orders accordingly

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 15TH DAY OF DECEMBER, 2023. R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Njeru for the State, Mr. Merebu holding brief for Ms. Cherotich for the Accused and Siele (Court Assistant)