https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7862

Republic v Kiprono (Criminal Case E004 of 2023) [2026] KEHC 7862 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7862 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Case E004 of 2023 E Ominde, J June 3, 2026 Between Republic Prosecution and Timothy Kiprono Accused Ruling 1.The Accused person was charged with one count of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that on the 16th day of January 2024 at Sinendet village within Uasin Gishu County, he unlawfully murdered Erick Kimeli. He pleaded not guilty to the charge but as the matter progressed, he entered into a plea bargain agreement on 16th October 2024 wherein he pleaded guilty to a lesser charge of Manslaughter contrary to Section 202 0f the Penal Code. 2.The Plea Bargain Agreement, duly signed, was availed to court on 18th November 2024. The Court, in compliance with Sections 137 F, G & H and took a fresh Plea on the new charge as amended pursuant to the Plea Bargain Agreement and the accused pleaded guilty to the amended charge and the Court convicted him accordingly. The Accused was granted an opportunity to mitigate which he did through his Counsel Ms. Moronge. Before passing sentence, the Court sought for a Pre-Sentence Report, which Report dated 6th February 2025, was availed by the Probation Office. 3.However, in the course of considering the Pre- Sentence Report it transpired that the wife of the deceased had been involved in the plea bargain process for reasons stated by the family of the accused that she had left the home to an unknown destination. The court directed the Probation Office to trace her and avail her to court which they did and on 24th March 2025 when she was availed in court, it transpired that she had been placed on witness protection and she had been availed to court in the belief that the matter was coming up for hearing on that date. She was in fact in the company of an officer from the Witness Protection Agency 4.The court then interviewed her in chambers in the presence of the Accused and his Counsel and informed her that the accused had entered into a plea agreement and sought her views on the same. She identified herself as Lillian Nekesa. She stated that she was not aware of any such agreement as she had relocated after the death of her husband for her own safety. She further stated that the accused had threatened to kill her and her late husband even before he eventually committed the act and including their unborn child with whom she was pregnant at the time. 5.That she was not wanted in that home because she was not of their tribe. She was therefore vehemently opposed to any plea bargain agreement and insisted that the matter proceeds to hearing. The accused on the other hand pleaded with the wife of the deceased to forgive him for all the pain and trauma that he had caused them. 6.In light of the fact of this new information that the wife to the deceased had not been involved in the plea bargain process, coming at the tail end of the plea bargain proceedings after the court had already adopted the agreement, the court directed counsel for the state and the accused to make submissions on the legal implications and ramifications of the legality of the plea bargain agreement based on the provisions of section 137 of the Criminal Procedure Code and each submitted as hereunder. Prosecution’s Submissions 7.Learned counsel for the prosecution equally laid down the background of the case and urged that the he personally interacted with this matter for the first time on 22nd October,2024, long after the parties had initiated the process of Plea Bargain. He established that the deceased, one Eric Kimeli was the blood brother of the accused herein, Timothy Kiprono, and largely that apart from the wife of the deceased person one Lilian Nekesa, the rest of the witnesses were directly related by birth to the accused person. 8.That unbeknown to him, the wife of the accused person had been placed under witness Protection, and his efforts to contact her on phone then, were not fruitful. Further, that at the time he met the 3 brothers and 1 sister of the accused and by extension the deceased, they informed him that their parents had passed on and the wife to the accused had fled from the matrimonial home to an unknown destination. He then proceeded to enter the plea bargain agreement on this misrepresentation of facts. 9.He stated that he was astonished when on 24th March 2025 when the wife to the deceased was ushered into court and denounced the entire plea bargain agreement. He therefore urged that in these circumstances, the issue for consideration is whether the court has the powers to review its own orders adopting the plea agreement dated 22nd October 2024. 10.Counsel cited the decision of Hon. Nyakundi J in Kimingich & Anor vs Republic Misc. Criminal Application no. E107 of 2024 (2025) [KEHC] 15530 (KLR) where the court found that a court may reconsider its own judgment or that of a concurrent session judge in order to prevent a miscarriage of justice. Additionally, he urged that Article 50 (1) of the Constitution guarantees every person the right to have any dispute that can be resolved by application of the law decided in a fair and impartial tribunal. He also placed reliance on the decision of the Court of Appeal in Accredo AG & 3 Others vs Stephano Ucceli & Anor (2017) eKLR where it was stated that the court can interfere with its own decree or order where there is discovery of new and important evidence which, after due diligence was not within its knowledge or could not be produced at the time the decree or order was made. 11.Counsel further posited that in National Bank of Kenya Ltd vs Ndungu Njau CA No 211 of 1996 the Court of Appeal emphasized that such an error must be self-evident and shall not require an elaborate arrangement to be established. Counsel therefore urged the court to make a finding that as at the time of penning down the impugned plea bargain agreement, he was operating on the innocent mistaken belief based on misrepresentation of some of the parties involved, that the wife to the deceased could not be traced without some element of unreasonable delay and expense. He reiterated that this Court has powers to review its own orders and would stand guided by its decision. Accused Submissions 12.Counsel for the accused person in her submissions laid down the factual background of the case and thereafter proceeded to proffer her mitigation on behalf of the accused person. She did not at all address herself on the legal implications and ramifications of the legality of the plea bargain agreement based on the provisions of section 137 of the Criminal Procedure Code in light of the denunciation of the plea bargain agreement by the wife of the deceased herein as guided by the court. I therefore find no need to summarise the said submissions for they are not at all relevant to the issue at hand. Analysis & Determination 13.Having ruminated upon the issues at hand, it is my considered opinion that two issues arise for determination as follows;i.Whether it was incumbent upon the prosecution to seek the views of the wife to the deceased in reaching the plea bargain agreement.ii.Whether failure to seek her views is fatal to the plea bargain agreement reachediii.Whether the court can nullify the plea bargain agreement after its adoption for want of the participation of the wife of the deceased 14.The Statutory provision that guides plea agreements is Section 137 of the Criminal Procedure Code(CPC). A consideration of the entirety of this Section from Section 137A all the way to 137O of the Act may seem to imply that a plea agreement is almost exclusively between an accused person and the prosecution. This is more particularly so because under the provisions of Section 137C (1) of the CPC an offer for a plea agreement in any criminal proceedings can only be initiated by either the accused person or the prosecution. The participation of the court in the negotiations is in actual fact expressly prohibited by Section137C (3) thereof. 15.This may therefore may seem to imply that the victims do not have a major role to play in any plea agreement. However, a careful consideration of Section 137D of the Act and particularly paragraph 137D(c) indicates otherwise. It provides as hereunder on what ultimately underscores the legality of Plea Bargain Agreement entered into between the prosecution and an accused person;A prosecutor shall only enter into a plea agreement in accordance with section 137A —(a)after consultation with the police officer investigating the case;(b)with due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the accused person and the interests of the community;(c)unless the circumstances do not permit, after affording the victim or his legal representative the opportunity to make representations to the prosecutor regarding the contents of the agreement. 16.It is to be noted that the provisions of Section 137D of the Criminal Procedure Code herein above cited are couched in mandatory terms by use of the word shall. This therefore underscores the mandatory nature of the provisions under this section. Section 137D(c) thereof states the only situation wherein a Prosecutor is permitted to enter any such agreement without consulting the victim is where circumstances do not permit. Further to this provision, under Section 137I (c), the Act provides that before passing sentence, the court shall take into account a victim impact assessment if any, that may have been made in accordance with Section 329(c). 17.The use of the word shall in this instance implies that if any such a statement by a victim be made, it should not just be considered by the court in a routine perfunctory manner, but it must be considered and in a manner that should impact the justice of the case. The herein cited provisions of Section 137 have in this regard demonstrated that in any plea agreement, the participation of all the parties involved, to wit the accused, the prosecution, the investigators (-see Section 137D(a) in this regard-) as well the victims, is mandatory in order that any agreement reached does not run afoul of the relevant statutory requirements that underscore the legality of a plea bargain agreement. 18.Over and above these provisions of the Criminal Procedure Code, Article 50 (1) of the Constitution of Kenya 2010 provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. 19.Thereafter, the Constitution, in appreciation and recognition of the fact that in criminal proceedings particularly, there can be no offender without there being a victim who is the subject of the offence thereto committed, has gone ahead and provided for the rights of victims also under this same said Article 50. Article 50(2)(9) thereof mandates Parliament to enact legislation providing for the protection, rights and welfare of victims of offences and in the exercise of this mandate, Parliament enacted the Victim Protection Act No. 17 of 2014 20.Of significance to these proceedings is Section 9 of the said Victim Protection Act which in its entirety it provides as follows;Rights during the trial process(1)A victim has a right to —(a)be present at their trial either in person or through a representative of their choice;(b)have the trial begin and conclude without unreasonable delay;(c)give their views in any plea bargaining;(d)have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;(e)be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;(f)have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and(g)be informed of the charge which the offender is facing in sufficient details. 21.From the provisions of this Section, it is clearly apparent that generally, every victim has the right to participate in any trial process involving them. More specifically however, under Section 9(c) thereof, every victim is entitled to give their views in any plea bargaining process. With the law then being as herein above summarised, the next question that the court needs to answer is whether the deceased wife can be considered to be a victim in this case in light of the fact that the deceased herein was the accused blood brother and the views that were sought were those of the accused siblings to the exclusion of the wife. 22.It cannot be denied that indeed the brothers and sisters of the deceased are victims in this matter and so it was imperative that their views be sought, and the same were sought and rightly so during the plea bargain process. That said, legally, the wife of the deceased too is a victim. In actual fact she is in my very well considered opinion the primary victim. This is by dint of the fact that in law, a spouse is always first in line in the degree of consanguinity to a deceased person. A spouse does in fact rank that even the parents of a deceased in this line of and degree of consanguinity. Siblings actually come fourth after the spouse, the children, and the parents in that order. This being the case then, it was a legal imperative that the views of the wife of the deceased be sought in the plea bargain process as a matter of course 23.Further to the above, in light of the fact that the accused and the deceased were blood brothers, it was even more imperative that the views of the deceased spouse be sought. This is particularly because in seeking the views of his siblings only, to the exclusion of the deceased wife, any decision reached would not be impartial, fair and just. 24.In actual fact, the impartiality, unfairness and injustice that the court herein envisages did not happen as an event that would enact itself in the future in this particular case, it played itself out immediately with regard to the sentence proposed by the Probation Office and the circumstances under which the said proposal was arrived at. This is because from the report filed, it transpired that the Probation office interviewed the accused siblings only to the total exclusion of the deceased’ spouse. 25.The court also notes that whereas the Prosecution proposed a sentence of 3-5 years’ imprisonment less the period of time spent in remand custody followed by a non-custodial sentence of one year in the plea bargain agreement to which the accused family had agreed to at the negotiation stage, the family then turned around and in the Pre- Sentence Report prepared by the Probation Office now sought for a non-custodial probation sentence which sentence is indeed the one that the Probation Officer recommended in its Pre-Sentence Report. As is apparent from all these, the spouse and her views did not all feature anywhere. 26.This recommendation by the Probation Office on the sentence was ostensibly based on the stated fact in the Report that the wife of the deceased could not be found ostensibly because she fled the home to an unknown destination after the murder of the husband. As it turned out however, the lady was all this while under the custody of the Witness Protection Agency which is a Government institution just like the Probation Office. 27.By dint of procedure it is the Investigating Officer who must have applied that the deceased spouse be a protected witness. If the Probation Office had exercised the requisite objectivity, impartiality, professionalism and diligence that is required of them in preparing their report, this is a fact that should have easily come to their knowledge and attention for their necessary action. Further, the court has also noted that the Probation Office also failed to take note of the fact that there was already an existing sentence that the parties had agreed upon during the plea bargain process. 28.The circumstances in which recommendations under which this pre-sentence report were made as herein observed by the court not only goes to cast doubt on the its integrity and professionalism that appertained to its preparation, but also underscores the fact that the primary victim in this case, notably the spouse of the deceased herein, was not at all involved in the plea bargain process from its inception to its conclusion. It also affirms and validates the court’s herein stated misgivings on the ramifications of side lining the primary victim in the plea bargain process. 29.It is very clear from the facts hereto appertaining, as herein summarised, that there is nothing to demonstrate that the circumstances pertaining at the time of the plea bargain negotiations did not permit the participation of the deceased wife as envisaged under Section 137D(c) of the Criminal Procedure Code. 30.This being the case, it follows therefore that the prosecutor did not grant the wife to the deceased an opportunity to make her representations regarding the contents of the agreement for no stated, valid and/or reasonable reason at. This act of the prosecutor therefore offends both the provisions of Section 137D of the Criminal Procedure Code and Section 9 of the Victim Protection Act. Consequently, the plea bargain agreement herein entered into is therefore not only irregular, but is also illegal. 31.My above conclusions answer the issues raised for determination in (i) and (ii) above in the affirmative. This then leads to the last issue for determination on what options are available to the court, where a plea bargain agreement that is tainted with irregularities and illegalities as the court has herein found that this was, has already been adopted by the court, and the said irregularities that heavily impact upon the legality of the agreement, come to the attention of the court after an accused has already been convicted and the matter is pending sentencing as is the case here, and whether the court can then nullify such an agreement. 32.The solution to this last issue is to be found in Sections 137K and 137L of the Criminal Procedure Code. Section 137K provides the circumstances under which an accused person can withdraw a plea entered into as a consequence of a bargain agreement. It provides as follows;Withdrawal of pleaAn accused person may withdraw a plea of guilty pursuant to a plea agreement—a.prior to acceptance of the plea by the court, for any reason; or(b)after the court accepts and convicts on the plea, but before it passes a sentence, if the accused person can demonstrate, to the satisfaction of the court, a fair and just reason for requesting the withdrawal. 33.With this provision in place, and in light of the provisions of Article 50 of the Constitution herein referred to which accord all parties to a dispute the right to a fair Trial, by dint of the fact that the accused right to withdraw a plea of guilty in a plea agreement at any time after conviction but before sentence is reserved if the conditions set out in the said Section 137K(b) are met, then under the doctrine of equality of arms, the same right accrues to a victim also to reject a plea agreement if it is sufficiently demonstrated that the same said conditions provided under the same said Section 137K(b) of the CPC appertains to the circumstances of the victims case. 34.The victim herein rejected the plea agreement for the reasons herein enumerated and the court having found that the plea bargain agreement entered into to be irregular and illegal finds that the provisions of this section are applicable in clothing the court with the power and mandate the court to nullify the plea agreement which power the court can exercise at any time before sentencing. 35.Further to the above, the court also takes into consideration the submissions by the Counsel for the State Mr. S. G. Thuo. In the end the said submissions all dovetails to his stated fact that he came into this matter when it was transferred to this court from High Court Number 2 by the Hon Mr. Justice J. Wananda. 36.That by this time, the plea bargain agreement had already commenced and was at the complete tail end and he was therefore not privy to what consultations and negotiations had been done prior, and that he only learnt of the fact that the spouse of the deceased had been totally excluded from the plea agreement process when the Pre- Sentence Report was availed as directed by the court and also when the spouse of the deceased was subsequently availed to court by the Witness Protection Agency. 37.Counsel for the State in the end therefore submitted that given the circumstances pertaining to the agreement, the court has the power to review its own orders, and ought therefore either quash, vary or adopt the plea bargain agreement as it may deem fit. He stated that given the circumstances of the predicament that he had found himself in as the prosecuting counsel, he shall be guided by the decision of the court. 38.These being the final submissions of the Counsel for the State, then Section 137L (2) of the Criminal Procedure Code is relevant and the same provides as follows;(1)Subject to subsection (2), the sentence passed by a court under this Part shall be final and no appeal shall lie therefrom except as to the extent or legality of the sentence imposed.(2)Notwithstanding subsection (1), the Director of Public Prosecutions, in the public interest and the orderly administration of justice, or the accused person, may apply to the court which passed the sentence to have the conviction and sentence procured pursuant to a plea agreement set aside on the grounds of fraud or misrepresentation.(3)Where a conviction or sentence has been set aside, under subsection (2), the provisions of section 137J shall apply mutatis mutandis. 39.In light of my affirmative findings on all the issues raised for determination, it is my very well considered opinion that the plea bargain agreement herein entered amounts to a nullity. Accordingly, the court now hereby vacates and sets aside the conviction of the accused person entered by the court on 18th November 2024 on the basis of the said agreement in its totality. In this regard, the provisions of Section 137L (3) of the Criminal Procedure Code shall now become applicable. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE