[2023] KEHC 25562 (KLR)

Republic v Kiptim (Criminal Case 1 of 2023) [2023] KEHC 25562 (KLR) (16 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25562 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 1 of 2023

RB Ngetich, J

November 16, 2023

Between

Republic

Prosecution

and

Zakayo Kipkemei Kiptim

Accused

Sentence

1. On May 25, 2023, this court delivered judgment finding the accused Zakayo Kipkemei Kiptim guilty of the offence of Murder as charged and convicted him accordingly, under section 203 as with section 204 of the Penal Code. The accused was found culpable of unlawfully and with malice aforethought, killing Joseph Kiptim. The state counsel informed the court that the accused was a first offender.

Presentence Report 2. This court called for a presentence report which was filed on the July 20, 2023. The report reveals that the accused was born in 1964 in Arama village of Poror Location, he never attended formal schooling due to lack of interest and ignorance by his parents back then, he has been involved in subsistence farming up to the time he was arrested and charged with the offence herein. He is married to the late Ruth Kiptim who died in February 2022 and were blessed with 7 children.

3. The accused admits the charge stating that he was drunk on the fateful day and was walking back home at night in the company of his brother (the deceased) when the two got engaged in a quarrel which emanated from an earlier incidence where a cow belonging to the late victim drunk some herbicide left unattended within accused compound and died. The quarrel escalated into a fight. The accused hit the deceased with a Jembe which he was carrying back home after work. He was rushed to hospital but unfortunatelys passed on while undergoing medication at Nakuru Provincial General Hospital. The accused prays for leniency stating that he did not intend to kill his brother but he was acting in self defence. He regrets his actions which he attributes to his state of being drunk and anger.

4. The report indicate that the family members shared that the incidence has had an impact in the relations amongst the larger family, however in the course of time, the magnitude of the effect of the act has reduced. The children of the accused who most of them are of maturity age, indicated that they have missed parental touch since their mother passed on early last year 2022 and the fact that their father has been in custody for a long time.

5. The wife of the late victim stated that she has decided to forgive the accused and has welcome the reconciliation efforts. The report revealed that the extended family members have lived harmoniously since the commission of the offence and they had planned to give a cow to the wife of the late victim as a gesture to wipe her tears following the loss of her husband and the modalities of the reconciliation talks and the presentation of the cow are to be done with the elders and the chief. They proposed to complete reconciliation process in three weeks’ time. The Probation Officer’s view is home environment is conducive for re-integration of the accused person.

Mitigation 6. The defence counsel Mr. Terer Advocate mitigated on behalf of the convict/accused. He submitted that the accused is remorseful for causing the death of the deceased herein. He submitted that he is a first offender and is aged 69 years and at the time of the commission of the offence he was aged 58 years; he is the sole bread winner in his family with children who are still in school as indicated in the probation report.

7. Counsel further submitted that the convict is of poor health who has been in and out of hospital while in custody. That he has been in custody for 11 years now from the year 2013 to date; he urged the court to take into account the period the accused has spent in custody. Counsel sought for the most lenient sentence in view of the factors they have cited and preferably a non-custodial sentence.

8. I have considered the mitigations, the presentence report and circumstances under which the offence of Murder herein was committed. The offence was committed when a quarrel ensued between the deceased and the accused who are brothers over unattended poison which killed the deceased’s cow. The presentence report indicates that the extended family have forgiven the accused and are in the process of full reconciliation. The wife of the victim has also forgiven the accused for taking away the life of her husband.

9. I also take note of the fact that accused has been in custody for a period of 11 years now. He is 69 years old, he is a first offender, is remorseful and with a family to take care of. In my view, the long period in remand must have given him opportunity to reflect on his life and resolve to be a law-abiding citizen for the remaining part of his life on earth. I am of the view that a non-custodial sentence would be appropriate for the accused.

Final Orders: -1. Accused to serve 3 years’ probation sentence.

2. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 16TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGE