[2022] KEHC 16206 (KLR)

Republic v Kirui (Criminal Case 12 of 2019) [2022] KEHC 16206 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16206 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 12 of 2019

RL Korir, J

December 8, 2022

Between

Republic

State

and

Hillary Kipngetich Kirui alias Gilbert Kirui

Accused

Judgment

1. The Accused Hillary Kipngetich Kirui aka Gilbert Kirui was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on May 11, 2019 at Chepkochun Sub-location within Mosonik Location Konoin Sub –County of Bomet County murdered Carolyne Kirui.

2. The Accused denied the charge before Muya, J on May 23, 2019. When the case came up for trial on December 4, 2019, Ms Chirchir, learned defence counsel informed the court that the Accused wished to commence plea bargain with the Prosecution. The court adjourned the trial to enable the parties time to plea bargain. The matter was adjourned several times before the parties finally filed a Plea Agreement dated November 22, 2021. When the matter came up on April 27, 2022, the Court accepted the Agreement after satisfying itself that the Accused understood his rights and had executed the Agreement voluntarily.

3. The Accused then pleaded to the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code. He pleaded guilty.

4. The Prosecutions Counsel then read the following facts as captured in the Plea Agreement:-“On the 11th day of May 2019, the accused Hillary Kipngetich Kirui at Mosonik village in Chepkochun sub location Konoin sub-county within Bomet County murdered Caroline Chepkemoi Kirui.On the material day, the deceased Caroline Chepkemoi Kirui went to meet the area chief one Charles Chepkwony and informed him that she wanted to collect her Identity Card and a birth certificate for one of her children from her husband Hillary Kipngetich Kirui, the accused person herein. When the deceased saw that the documents she had requested were not forthcoming, when the village elder came with the deceased to the accused’s mother’s house.(sic!) While at the accused’s home, the deceased insisted that she needed her Identity card and the birth certificate as requested earlier on. This brought a misunderstanding between the accused person and the deceased with the accused insisting that the deceased should spend the night so that she leaves very early the following day.However, the deceased Caroline Chepkemoi Kirui insisted on leaving. This was about 2100hrs. The village elder then went to assist the deceased look for a motorcycle. While waiting for the motorcycle, the accused and the deceased quarreled and this caused the accused person to take a knife from his pocket and stabbed the deceased on the head and on the right leg. (sic!) The deceased was taken to AIC Litein Hospital where she was pronounced dead on arrival. On May 11, 2019, the accused herein was arrested and later arraigned in court with charge of murder and which offence has now commuted to a charge of manslaughter”. (sic!)

5. The Accused stated that the facts were true and the court convicted him on his own guilty plea. The court further called for a Pre-Sentence Probation Officer’s Report and scheduled a sentence hearing.

6. At the sentence hearing on October 19, 2022, defence counsel submitted that the Accused was remorseful and had changed while in prison. That he did not intend to murder his wife. That he prayed for a lenient and non-custodial sentence so as to go and take care of and educate his children. Counsel further submitted that although a life was lost, the families of the accused and that of the deceased had reconciled and the Accused had sought their forgiveness.

7. The accused also told the court in further mitigation that he had changed and acquired skills in masonry while in remand. That he will therefore be able to work if released.

8. Mr Njeru, the learned Prosecution counsel submitted that the Accused had saved the court time by plea bargaining. He however urged the court to impose a custodial sentence as the accused viciously attacked his wife and inflicted very severe injuries on her which must have caused her a lot of pain. Counsel also told the court that the Accused was a first offender.

9. Sentencing serves multiple purposes as enumerated in the Judiciary Sentencing Policy Guidelines (2016) which outline the objectives of sentencing at paragraph 4. 1 as follows:-“4. 1. The sentence are imposed to meet the following objectives:-1. Retribution.2. Deterrence.3. Rehabilitation.4. Restorative justice.5. Community Protection.6. Denunciation.”

10. In sentencing the Accused, I am guided by the gravity of the offence, the circumstances of the case and the offender’s personal circumstances. The court is also required by Section 9 and 12 of the Victim Protection Act, 2014 to take into consideration the views of the victims or the victim impact statement.

11. In Jacob Kirimu Kabiru v Republic(2010) eKLR, the Court of Appeal held that:-“We believe that the restricted right of appeal where a bargain has been struck is to assist in speeding up the process and to attain finality at the earliest time possible. However, we note that the superior court even after realizing that the plea was based on a plea bargaining agreement did not consider the mandatory provisions of section 137 I (2) of the Criminal Procedure Code and in particular, the need to take into account a victim impact statement. In our view, such a victim impact statement would have been necessary……….”

12. Similarly in Leonard Maina Mwangi v Director of Public Prosecutions & 2 others (2017) eKLR, Lesiit J (as she then was) stated:-“The applicant relied on the case of I P Veronica Gitahi & another v Republic (supra). In that case the Court described and defined the parameters for intervention by victims’ representatives under the VPA as follows:-‘The Act further provides the parameters of the victim’s representative’s participation in the trial. The victim’s views and concerns may be presented in court at any stage of the proceedings as may be determined to be appropriate by the court. Those views and concerns may be presented by the victim himself or herself or by a “legal representative” acting in the victim’s behalf, at the stage of plea-bargaining, bail hearing and sentencing, as far as possible to be heard before any decision affecting him or her is taken; to be accorded legal and social services of his or her own choice, and if the victim is vulnerable, to be given these services at the State’s expense, and to make a victim impact statement at the stage of sentencing. These rights must however not be prejudicial to the rights of the accused person or be inconsistent with a fair and impartial trial…..”

13. The views of the victims were captured at page 3 of the Probation Officer’s report. He interviewed the mother of the deceased among other relatives. According to the report, the mother of the deceased was distraught and believed that her daughter was murdered by a violent husband disguising himself as a loving person. She believes that the act was intentional going by the number of times the deceased was stabbed. She described the marriage between the deceased and the accused as having been rocky because the accused was violent and jealous. According to her, the violence would escalate whenever the deceased got a job or any money from her ‘merry go round’ group.

14. According to the Report, the community was still shocked by the action of the accused but hoped that the two families would reconcile with time. The offender’s family was stated to be mourning the loss of their daughter in-law. They however pray for a lenient sentence and the accused to be given a non-custodial sentence.

15. I have considered the circumstances of the offence. The Accused and the deceased were living together as husband and wife and at the time of the offence, the two were estranged. The deceased had ran away from the matrimonial home owing to the violence visited upon her by the Accused. On the material day, she had gone back there to collect her identity card and birth certificate. The Accused was unhappy about her decision not to return to him. On her way out, after failing to convince her to stay and spend the night, a quarrel erupted. The Accused pulled out a knife and stabbed her several times killing her instantly.

16. The Accused, no doubt is now repentant having reflected on his rash action. This case however demonstrates the escalating violence in homes occasioned by the inability of partners to resolve marital disputes peacefully without violence being visited on the weaker party. The violent quarrels often revolve around issues of money and infidelity.

17. The probation officer documented information from the family members that it was not the first time that the Accused had assaulted or beaten the victim. It was not the first time she had left the matrimonial home and retuned. That this time round, when she made up her mind to leave for good, the Accused was exasperated. It was as if he told himself that she would either remain with him or she will be no more. The deep vengeance was reflected in the number of times he stabbed her. A look at the post-mortem report shows that the deceased sustained multiple cut and deep penetrating wounds on the posterior upper chest, left leg and hip joint, upper left posterior and scalp. She also sustained deep cut wounds on the head and collapsed lungs. The stab wounds penetrated through the thorax and ripped through the lungs and the cardiao-vascular system. The pathologist found the cause of death to be severe chest injury secondary to assault. To the mind of the court, the injuries demonstrate a heartless, cruel and beastly act.

18. I have considered the accused’s plea for a lenient sentence. It is the view of this court however, that lenient sentences in cases of this nature can only encourage gender based violence and in particular domestic violence. Where such violence ends in death, it must cease to be regarded as domestic violence. It is murder. In this case however, the Accused has already been convicted of the lesser offence. He must get a deterrent sentence. The sentence must be one that sends the message that violence in the home is not to be tolerated. Domestic violence, assault and wife beating in particular must not be allowed to flourish. It is a practice that must be consigned to history. The sentence must therefore reflect society’s collective condemnation of this most barbaric practice.

19. The accused prayed for a non-custodial sentence so as to go and parent his motherless children. This court is alive to the rights of those children. However, this court is of the view that there is no guarantee that those children would be safe in the hands of the Accused. Indeed, this view is supported by the social inquiry report.

20. This court has taken into consideration that the Accused plea bargained and saved judicial time. The Record shows that the Accused made a plea offer way back in 2019 and delay in the plea negotiation was attributed to the Prosecution. I have considered that the Accused was a first offender and was remorseful. He will therefore be spared the maximum sentence provided under Section 205 of the Penal Code which is life imprisonment.

21. The Accused is sentenced to serve 18 years imprisonment. The sentence shall be deemed to run from May 17, 2019, being the date of his arraignment and pre-trial custody.

22. The Accused, having executed a plea agreement, has 14 days right of appeal against sentence only.

23. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 8TH DAY OF DECEMBER, 2022. .........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of the accused, Mr. Suter holding brief for Mr. Njeru for the State, Ms. Chirchir for the Accused and Kiprotich (Court Assistant).