[2023] KEHC 26473 (KLR)

Republic v Kirui (Criminal Case E002 of 2020) [2023] KEHC 26473 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26473 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E002 of 2020

RL Korir, J

December 15, 2023

Between

Republic

Prosecution

and

Alphonce Kiplangat Kirui alias Jacob Siele

Accused

Judgment

1. Alphonce Kiplangat Kirui (Accused) 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 the 13th October, 2020 at Chebchabas location, Konoin Sub-County within Bomet County murdered one Geoffrey Siele.

2. The Accused was arraigned in court on 26th October,2020. The Prosecution however told the court that the Accused was not fit to stand trial and applied that he be taken to a psychiatrist for psychiatric evaluation and treatment. Subsequently report by Dr. Wafula Consultant psychiatrist at the Nakuru provincial general hospital dated 17th February, 2021 was presented to the court. The report stated that the Accused had no mental illness and was fit to stand trial.

3. The Accused took plea on 25th February, 2021 and he pleaded not guilty. The case went to pre-trial on 17th March, 2021 when learned defence counsel made an application for the accused to be granted bail pending trial. The prosecution opposed the application on grounds that none of the relatives was willing to stand surety for the accused as the family was bitter that he had murdered his brother, the deceased in the case.

4. In a ruling dated 31st March, 2021, the court declined to grant the accused bail on grounds that his family had expressed fear that his release may jeopardize the safety of the family members who had witnessed the strange and violent behavior he exhibited when he killed the brother.

5. The case was set for trial on 4th November, 2021 on that date, the prison authorities reported that the Accused was admitted in hospital. The defence counsel informed the court that the Accused wished to plea bargain. When the matter came up for hearing on 14th March, 2022, counsel informed the court that the Accused was not amenable to plea negotiations.

6. The trial consequently commenced with two witnesses called to testify. At the conclusion of the testimony of the second witness, learned defence counsel informed the court that the accused now wished to plea bargain. The case was consequently adjourned to allow the parties time to plea bargain and file a plea agreement.

7. A Plea Agreement dated 23rd October, 2023 was filed in court on the same date. The Court after interviewing the Accused was satisfied that he had understood the legal process of plea negotiation and had executed the Agreement voluntarily. The court accepted the Plea Agreement.

8. The Accused then took plea on the substituted charge on 25th October, 2023. He pleaded guilty and the Court entered a plea of guilty. The Prosecution Counsel read the Facts of the case as follows: -“The facts of this case are that on 13th October, 2020 at about 1300hrs the accused in this case Alphonse Kiplangat Kirui alias Jacob Siele went to the home of his brother Charles Siele while armed with a knife. He was shouting and demanding to be paid some money but Charles was not at home. Charles’ wife Josphine Siele screamed and another brother of Charles by the name of Geoffrey Siele (deceased) who was nearby responded to the scream.The deceased tried to calm down the accused but the Accused became violent and stabbed the deceased several times with the knife. The deceased was rushed to Chepchabas dispensary and was further referred to Kericho District Hospital where he died while undergoing treatment.The Accused was arrested by the mob and was beaten by the mob and had to be rushed to Chepchabas dispensary where he was treated and was taken to Maramara Police Post and later to Konoin Police Station. The knife that he used to stab the deceased was recovered. The Accused mental status report indicated that he had mental illness.The post mortem of the deceased body indicated that he died out of massive internal bleeding due to penetrating chest injury by a sharp object.”

9. The Accused accepted the facts as true and the court confirmed the plea and convicted him for the offence of manslaughter Contrary to Section 205 of the Penal Code. The court further directed the filing of a pre-sentence probation report and a victim impact statement.

10. At the sentencing hearing on 16th November, 2023, Mr. Kenduiwo learned defence counsel submitted that the Accused was 31 years old and was a last born in a family of 8 children. That the Accused had sought and received forgiveness from the family and now prayed for a non-custodial sentence.

11. On his part the Learned Prosecution Counsel while admitting that the Accused saved State resources by Plea Bargaining and was a first offender, rooted for a custodial sentence for effective rehabilitation of the Accused.

12. The Probation Officer quoted as having the Accused’s family stated the Accused had exhibited mental illness in the past. That he abused narcotic substances and was a recovered alcoholic. The report states that the Accused accepted the charge, was repentant and remorseful and only prayed for leniency in sentencing.

13. With respect to the victim impact, the probation officer made observation that the immediate family of the Accused prayed for a non-custodial sentence while the extended family was apprehensive of his violent conduct. The family and community were of the view that he suffered depression and needed full treatment and mental assessment before being released back to the community.

14. This court observes that the Accused has undergone several mental evaluations. On 16th October, 2020 soon after the commission of the offence, on 13th October, 2020, he was examined by one Dr. Batt who indicated that he had mental illness and put him on treatment. On 17th February, 2021 Dr. Wafula, consultant psychiatrist at the Nakuru Provincial Hospital who formed the opinion that he (Accused) had no mental illness and could stand trial. A subsequent mental examination was done on 12th July, 2023 by Dr. Nancy Wendot at the Kericho Referral Hospital who returned the verdict that he was of sound mind and fit to stand trial.

15. The court ordered this last examination to be sure that the Accused had capacity to plea bargain.

16. The Sentencing Policy Guidelines 2023 outlines the objectives of sentencing at 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.

17. I have considered the submission that the Accused was remorseful and that he wished to be forgiven by the family. He insisted that he was not in his right senses when he committed the offence. I am inclined to believe this on the basis of the 1st medical report that indeed he was not in control of his senses. This is also backed up by the family’s opposition in the first instance for him to be granted bond. The courts’ ruling issued on 31st March, 2021 had denied the Accused bond on grounds that the family was fearful that he might harm them owing to the strange violent behavior which he had exhibited before killing his brother.

18. I have considered that the family who are also victims of the offence still insisted that the Accused undergo mental evaluation and medical supervision before being released. This was a prayer which cannot be granted as he could access any necessary medical treatment at home if released. It was also clear to the court from the last medical examination that he was of sound mind.

19. In the end, it is my finding that the ends of justice would be served through a lenient custodial sentence. Such period will give the family sufficient time to heal and reconcile. The sentence would therefore serve the twin purpose of reconciliation and reintegration in view of the fact that the deceased and the accused were brothers.

20. The Accused is sentence to serve 5 years’ imprisonment. In view of his past mental history the Prison authorities shall ensure that he accesses close medical attention and supervision.Orders accordingly.

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