[2022] KEHC 16378 (KLR)

Republic v Koech & another (Criminal Case 20 of 2017) [2022] KEHC 16378 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16378 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 20 of 2017

RL Korir, J

November 4, 2022

Between

Republic

Prosecutor

and

Dennis Kipngetich Koech

1st Accused

Erick Kipkorir Langat alias Kiprono

2nd Accused

Ruling

1. Dennis Kipngetich Koech and Erick Kipkorir Langat alias Kiprono were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. They were alleged to have murdered David Kipyegon Kirui on November 19, 2017 as Chemisimgut Village Chepalungu Sub-County within Bomet County.

2. They took plea on December 1, 2017 and each pleaded not guilty. When the matter came up for hearing before Muya J on February 15, 2018, Prosecution Counsel informed the court that the state was intending to plea bargain with the 2nd Accused (Erick Kipkorir Langat). On March 9, 2018 when the matter came up, Prosecution Counsel Mr. Barasa informed the court that plea negotiations had aborted. The case was then set for trial on March 9, 2018.

3. On September 27, 2018 after 8 witnesses had testified for the Prosecution, Mr. Wawire for the Prosecution informed the court that there were plea negotiations going on between the State and the 2nd Accused. After several adjournments, the parties informed the court that the 2nd Accused and the Prosecution had executed a plea agreement. The 2nd Accused pleaded guilty to the lesser charge of manslaughter on December 4, 2019 and admitted the facts as detailed in the plea agreement. He was convicted on his own plea of guilty by Dulu J on December 4, 2019. The court set a sentencing date for March 4, 2020 and directed the filing of pre-sentence report. The 2nd Accused Erick Kipkorir Langat was sentenced to 8 years’ imprisonment.

4. I took over the case on the October 28, 2020. On that date Mr. Muriithi for the Prosecution sought time to review the case against the 1st Accused. On the return date on November 4, 2020 he told the court that he had reviewed the file and come to the conclusion that the 1st Accused was not linked to the offence. He submitted that the 2nd Accused had pleaded guilty and had been convicted and sentenced. Counsel further submitted that the 1st and 2nd Accused were brothers and were together at the scene and that was why both were charged. He sought leave of the court to enter a Nolle Prosequi.

5. Mr. Koske for the 1st Accused submitted that he had no objection to the Prosecutor’s application.

6. The powers of the Director of Public Prosecutions to charge and prosecute are detailed in Article 157 of the Constitutionand Section 25 of the Office of the Director of Public Prosecutions’ Act(2013). Article 157 Provides:-(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may:-(a)institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(b)take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority;and(c)subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

7. The constitution The Constitution requires the DPP to exercise the powers donated to him by constitution the Constitution in a judicious manner and to serve the public interest. The powers include the power to charge and to discontinue proceedings where justice so demands.

8. In this case, the trial against the 1st and 2nd Accused had gone on for 2 years before the 2nd Accused opted to plea bargain. The record shows that he had made a plea offer early in the trial which the Director of Public Prosecutions did not accept. Eventually his second attempt succeeded and the charge against him was reduced to one of manslaughter to which he pleaded guilty. There was no mention in the facts to which he admitted that he acted in concert with the 1st Accused who is said to be his brother. His admission implied that he was solely liable for the death of the deceased.

9. Having considered the record and the facts upon which the 2nd Accused was convicted, I am persuaded that the Directorate of Public Prosecutions’ application for leave to terminate the proceedings against the 1st Accused is merited.

10. The Nolle Prosequi dated November 4, 2020 is accepted by the court. The proceedings against the 1st Accused Dennis Kipngetich Koech shall not continue. Since the Prosecution had not closed its case, the Accused is discharged. He is set at liberty forthwith unless otherwise lawfully held.

11. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED THIS 4TH DAY OF NOVEMBER, 2022………………………………R.LAGAT-KORIRJUDGERULING DELIVERED IN THE PRESENCE OF THE 1ST ACCUSED, HIS COUNSEL MR. KOSKE, MR. MURIITHI FOR THE STATE AND KIPROTICH (COURT ASSISTANT).