https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10624

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE (SUB-REGISTRY)** **HCCRC NO. E003 OF 2024** REPUBLIC………………….………..…………….. PROSECUTION **VERSUS** BRIAN KIPTOO ………………………….…………..… ACCUSED **JUDGMENT ON PLEA BARGAIN** 1. The accused person **BRIAN KIPTOO** was charged with murder contrary to section 203 as read with section 204 of the Penal Code. That on 3/8/2023 at Kabogor Village within Mogotio Sub-County at Baringo County, he unlawfully killed Simon Kiptoo Komen. 2. Through a Plea Bargain Agreement dated 24/6/2026, the Accused person and the Prosecution negotiated a reduction of the charge vide section 137A 1(a) of the Criminal Procedure Code – from murder to manslaughter contrary to section 202 as read with section 205 of the Penal Code. 3. The Plea was recorded on 24/6/2026 after compliance with section 137 F and section 137 G of the Criminal Procedure Code. 4. The accused person pleaded to the charge and the facts – and was convicted accordingly. The facts were that :- **On the 3rd day of August, 2023 the deceased one Simon Kiptoo Komen had arrived home from Emining Shopping Centre at around 1600 hrs. His home is in Koimase area within Kabogor Sub-Location. On arrival he went straight to his residence thereafter he came out with a panga and headed straight to where the accused one Brian Kiptoo Komen was ploughing his land.** **The Deceased jumped over the fence and went straight to where the accused was and confronted him throwing words at him and daring to cut him with the panga he was carrying. The accused defended himself with a pick mattock that he was ploughing with and managed to over power the deceased who wanted to cut him with the panga throwing him to the ground. The accused snatched the panga from the deceased and proceeded to cut him severally inflicting several deep cut wounds on his shoulders, head and hand. Abraham Lagat, a neighbor who witnessed the incident pleaded with the accused not to cut the deceased anymore. The accused then escaped from the scene taking the panga with him.** **Abraham Lagat raised an alarm and he was joined by other neighbours including Stephen Yatich and the village elder one Wilson Kiprop who informed the area assistant chief namely Mr. Julius Chepkok about the incident and the assistant chief then informed the OCS Emining Police Station. The village elder organized for a vehicle that rushed the deceased to Eldama Ravine Sub-County Hospital but unfortunately, he was pronounced dead upon arrival at the facility. The report of his death was made at Emining police station vide OB/13/03/08/2023. The accused was traced to his house on the following morning 04/08/2023 where he was arrested and escorted to Mogotio Police Station where he was booked awaiting arraignment in court. The scene of crime was also documented. It was established during investigations that the accused had previously filed a report of threats to his life made to him by the deceased vide OB 06/30/12/2022.** **The Postmortem was conducted on the body of the deceased on 7th August, 2023 at the Eldama Ravine Sub-County Hospital by Doctor Kamau who formed the opinion that the cause of death was multiple cuts severing major vessels leading to hemorrhage. Samples were also taken for further analysis.** **The accused was presented before court at Eldama Ravine and custodial orders were sought and granted. Buccal swaps were collected and an exhibit memo prepared to the government chemist where several exhibits were subjected to DNA analysis.** **The police file was compiled and the accused person charged with the offence of murder now reduced to Manslaughter upon request for plea bargain.** **The prosecution produced these EXHIBITS** 1. **Blood stained panga which was discovered 100 meters from the crime scene.** 2. **The suspects black blood stained trouser recovered at the suspect residence.** 3. **A blood stained white blue stripped t-shirt belonging to the suspect recovered around 100 metres from the crime scene.** 4. **Postmortem Report.** 5. **Government Analyst Report.** 6. **Exhibit Memo Form.** 7. The accused person pleaded that the facts as read to him were correct. he was convicted on his own plea of guilt. 8. Pursuant to section 137I of the Criminal Procedure Code I heard both counsel on issue of sentence. I also sought a Presentence Report as per section 13 I (3). 9. Ms. Omari for the State submitted that the was 1st offender and that it was the deceased who began the fight which led to his death. that the Accused was doing his business. that the Accused did not provoke deceased but that there had been a long standing dispute between him and the deceased threatened the accused and a report was made at police station. That the families had reconciled and compensation to family of deceased made. Court was referred to [Republic v Amonyeke & another [2026] KEHC 7211 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7211/eng%402026-05-26) where the court considered that the accused was 1st offender, remorseful, ready for rehabilitation, and the loss of life and sentenced to 5 years imprisonment. The state submitted that 5 years’ imprisonment was sufficient. Mr. Nyagaka for the accused person submitted in mitigation that the Accused was remorseful for event which occurred on 3/8/2023 leading to loss of deceased’s life. That the accused was very remorseful. That the Presentence report – filed on 3/6/2026 was self-explanatory. That at the of the report the recommendation was that the family was receptive to re-integration of accused to society. That the Report presented the mitigation, which he di not wish to repeat. He submitted that [Republic v Amonyeke & another [2026] KEHC 7211 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7211/eng%402026-05-26) case was distinguishable to the circumstances of this case. That unlike in this case in ***Amonyeke*** the deceased was not he aggressor. Here the deceased was aggrieved. He referred the court **to R vs John Kimiti Mwaniki [2017] eKLR** It was submitted thatin sentencing the court should take into account circumstances of the offence, the offender’s remorse, possibility of rehabilitation. That the act of the accused was not planned/pre-mediated. He urged the court for non-custodial sentence to enable accused/convict to take care of his family. That the reduction of the offence manslaughter had saved judicial time. 1. The only issue for determination is what is the appropriate sentence in the circumstances of this case. 2. The Presentence Report states as follows:- ***CIRCUMSTANCE OF THE OFFENCE*** *The accused person as well as other family respondents confirmed that the late victim and the accused person had for a long time been having dispute. The source of the dispute emanated from the shared boundary of piece of land which was left behind by their late father. Each accused the other of encroaching into the other’s land especially when grazing their livestock.* *On the day of the incidence, the accused person was in the said land cultivating when the late victim approached him while armed with a panga.The two got engaged in bitter words which progressed into physical fight. In the process, the accused person managed to get hold of the panga upon which he cut the late victim.He subsequently succumbed to death as a result of the injuries inflicted.* ***ATTITUDE TOWARDS THE OFFENCE*** *The accused person expresses remorse for his action. He attributes his action to bitterness and provocation by the late victim who found him in his farm. He further states that he feared for his life since the late victim approached him while armed with a panga saying that he came to finish him.He prays to the court for a lenient sentence.* *The report further states:-The area administrator shared that he knew the family well. He also stated that he was aware of the differences and animosity between the late victim and the accused person. The administrator went on to share that his office had tried to resolve the issue but had not succeeded. He stated that it was unfortunate that the incidence occurred a couple of days prior to a date that the parties had scheduled to meet and attempt to resolve the dispute* 1. Regarding the welfare of the secondary victims the court was told through the report: *After deliberations, the immediate family of the accused person committed themselves to sell a portion of the land belonging to the accused person. The money so acquired was to be given to the wife of the late victim. The money was for supporting the children of the late victim through their schooling since all of them were of school-going age both in primary and secondary level.* *The family members additionally resolved that the accused person was to stay away from the family of the late victim should he get out of custody as determined by the court. One of his uncles stated that he would accommodate him at his farm for a duration that the family members would deem enough before allowing him back to his farm. This, the members shared would give time for healing to the late victim’s family members. The family members had already identified a suitable buyer of the portion of land and had paid some deposits. The buyer is a close family friend.* *The minutes of the deliberations were documented.* 1. The document dated 23/5/2026 was attached to the Presentence report. It is noted that the deceased and accused were stepbrothers – children of one father but different mothers. The issue was Land. The accused seeks a non-custodial sentence. The state seeks a short custodial sentence as per ***R vs Amonyeke*** where the court having considered the mitigating circumstances, and the impact of the offence on the family of the deceased emotional, psychological and financial – sentenced the accused to 5 years imprisonment. 1. It is true that in this case it is the deceased who was the aggressor. However, from the facts and the Postmortem report, despite the fact that the deceased was the aggressor – the accused used excessive force – to cut the deceased severally with the panga – yet the deceased had not injured him. After disarming the deceased, he did not have to cut him so many time times and with so much force. Cuts on head into the brain ,20cm long, 7cm deep, deep cut on the right shoulder severing the brachial plexus vessels and bones , cut in left hand wrist 1.5cm , 19 cm deep, degloving cut on left occipital area about 10cm diameter. 2. These were serious injuries and if it was not for the plea bargain malice aforethought would have been read just from the injuries. 3. Having considered the guidance from the Judiciary Sentence Policing Guidelines 2023 – on manslaughter, the culpability and blameworthiness of the accused person is too be read from the circumstances. The sentence will depend on the circumstances too. Clearly the attack by the deceased with a panga is a mitigating circumstance in this case, but the manner in which he committed the offence it is my considered view that the accused person deserves a custodial sentence. 4. The accused took plea on 14/8/2023 and having been in custody has served some period in custody. That is taken into account in determining his custodial sentence. However, there is need for him to since that time. 5. Taking into account the reconciliation and compensation arrangements accused will also need to spend some time on Probation supervisions to enable the reconciliation. 6. The accused will serve 5 years imprisonment with effect from the date of plea 14th August 2023. 7. Upon release from custody, he will serve 12 months on Probation supervision to enable reintegration. 8. The PACs office is to maintain contact and collaborate with Prison authorities to enable the smooth transition from the custodial sentence to Probation Supervision. 9. Orders accordingly **JUDGMENT** dated, signed and delivered at Kabarnet High Court this 17th July 2026. **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- Court Assistant – Abuga/Gladys. Accused - Present Koech for Omari for the State. Nyagaka for Accused.