https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8417

Republic v Koech (Criminal Case E019 of 2023) [2026] KEHC 8417 (KLR) (22 May 2026) (Sentence) Neutral citation: [2026] KEHC 8417 (KLR) Republic of Kenya In the High Court at Iten Criminal Case E019 of 2023 JRA Wananda, J May 22, 2026 (FORMERLY ELDORET HIGH COURT CRIMINAL CASE NO. E012 OF 2022) Between Republic Prosecution and Emily Jepkoech Koech Accused Sentence 1.The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on 15/04/2022, at Setano Village, Kocholwo Location, Keiyo South Sub-County, within Elgeyo Marakwet County, she murdered one Richard Kipkoech Rutto, her husband. 2.Mr. Oburu Advocate represents the accused, while Prosecution Counsel Ms Racheal Mwangi presently appears for the State. 3.The accused was arraigned on 28/04/2022, and took plea on the same date before E. Ogola J, pleading not guilty. Subsequently however, the accused entered into plea bargain discussions with the State which eventually culminated into the plea bargain agreement signed by her on 30/10/2025. The matter then came up for plea bargain hearing on 4/11/2025. The accused was sworn on oath, and after examining her, I recorded my satisfaction that section 137F-137G of the Criminal Procedure Act, governing the plea bargain process had been complied with, that the accused had signed the agreement together with her Counsel, voluntarily, and without any coercion, and that she fully understood the effect thereof. I thus allowed accused to take a fresh plea, now on the fresh charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code, which she did, and upon which she then pleaded guilty. The statement of facts of the case (factual basis) was then read out to the accused. The same was basically as follows:“The accused was the wife of the deceased. On the night of 15/04/2022, at around 8.00 pm, the deceased went home while appearing drunk. He then ate supper and went back to drinking alcohol. He returned home at around 9.00 pm and started to quarrel with the accused person, and a fight ensued. As the two were fighting. the deceased picked up an axe and tried to cut the accused with it. The accused however overpowered him, took the axe and hit the deceased once on the forehead with it. The deceased fell and started bleeding profusely. The incident happened in the family kitchen in darkness. The accused person then pulled the deceased out of the kitchen and out of the compound. Since the accused's house was built on top of the hill, the accused undressed the deceased and pushed him down the hill. The deceased fell towards a nearby river. Thereafter, the accused went back to sleep. The next day. the accused woke up very early in the morning, took the axe she had used to kill the deceased with, and washed it. She then put it outside the store and proceeded to report to the area chief. Villagers were alarmed when they found blood stains on the path leading to the river. They decided to divide themselves into two groups and took different directions following the blood stains on the road. One group followed the blood stains, which led them to the river Emchemngeno. There, they were able to recover the body of the deceased, which had been invaded by ants been invaded by ants. The second group followed the blood stains, which led to the accused kitchen. On entering the kitchen, they were able to recover the deceased's blood-stained clothes. The body of the deceased was taken to Kamwosor sub-county Hospital Mortuary for preservation and autopsy. A postmortem was conducted on 25th April 2022, where the doctor noted the cause of death as a result of massive head trauma leading to brain hemorrhage. The accused surrendered herself to the area chief who informed the police from Kaptagat Police Station. She was later re-arrested and charged with the offence of murder which has now been reduced to manslaughter.” 4.Prosecution counsel then produced, as exhibits, the Post Mortem Report dated 25/04/2022, the blood-stained clothes, bundle of photographs, and the axe. 5.When asked to confirm or refute, or comment on the correctness of the facts read out, the accused confirmed the same as correct and true. Satisfied that the statement read out disclosed sufficient factual basis for the charge, this court accordingly convicted the accused of the offence of manslaughter. 6.Regarding the sentence to be imposed, Ms Mwangi informed the court that there were no previous records on the accused hence she could be treated as a first offender. 7.Ms. Oburu, on his part, in mitigation submitted, basically, that the accused has 7 children, that on the fateful date, the deceased returned home late and initiated a fight, that it is the deceased who tried to hit the accused with the axe, and that the accused only retaliated and only hit the deceased once. He submitted that the incident occurred in darkness so the accused could not see the extent of the injury, that the accused became confused and that is why she tried to hide the evidence as she feared the public’s response, but that she reported the incident to the Chief. He submitted that the accused is remorseful and regrets her actions, that her children are suffering and abandoned as the relatives are irresponsible and some are dead. He prayed for a lenient sentence and pointed out that she has been in custody for the last 5 years. 8.I then gave opportunity to some of the relatives of the deceased who were in court to address the court. 9.Moses Kipkorir Kiptoi, who introduced himself as the step-father of the deceased told the court that he had forgiven the accused, that the 1st born of the accused person is 20 years old and the last born is still in nursery school. William Kiprop Chumo, another relative, too, confirmed that the family of the deceased had forgiven the accused. 10.I then directed that a Pre-sentence Report be filed, which was done. The Report, dated 3/12//2025 and prepared by the Probation & Aftercare Service (Elgeyo Marakwet County Office) indicates that it was compiled after perusal of the court file, and interviews with, inter alia, families of both the accused and the deceased, the local administration, and neighbours. Determination 11.The applicable law on sentence for the offence of manslaughter is section 205 of the Penal Code which provides as follows:“Any person who commits the felony of manslaughter is liable to imprisonment for life.” 12.In determining the appropriate sentence to impose, I take into account the Supreme Court decision in the the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR) in which it guided that, in sentencing, the following mitigating factors would be applicable;(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender; and,(h)any other factor that the court considers relevant. 13.Similarly, the Court of Appeal, in the case of Daniel Kipkosgei Letting v Republic [2021] eKLR, pronounced as follows;“With regard to the above, we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing Policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..” 14.Further, Majanja J, in quoting Francis Karioko Muruatetu (supra), in the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, stated as follows:“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………” 15.I note that in the plea bargain agreement, the prosecution recommends a sentence of 15 years’ imprisonment. 16.I also consider the contents, findings and recommendations of the Pre-sentence Report. The salient observations I make from the Report are that the accused is 41 years old, that she never completed her primary education due to early marriage to the deceased, with whom they have 7 children, two of them adults, one in senior school, and the rest still in primary school. It is stated that the children are currently in the custody of relatives. It is reported that the accused and the deceased lived together for about 20 years although they had a strained relationship fuelled by the deceased’s alcoholism-related behaviour. It is stated that on the fateful day, the deceased arrived home when drunk and started a fight, whereupon the accused hit him with an axe and he fell down and died. The Report states further that the families of both the accused and the deceased have been involved in reconciliation efforts which has resulted in healing and acceptance of the loss, a fact confirmed by the local administration, and indeed, there is on record a letter from the area Chief to that effect. The Reports paints the accused person as being generally a peace-loving person and that relatives of both families have prepared for her homecoming, if released, and have resolved that on her return, she will relocate to her parental home in Baringo County while awaiting final cleansing rituals to be performed. It is thus reported that the relatives propose the accused person’s release or a non-custodial sentence considering her children’s age. 17.My own observation of the accused is that she is evidently remorseful. I also take into account the fact that she is said to be a 1st offender, and also that she entered into the plea bargain agreement, and thus pleaded guilty to the lesser charge of manslaughter, and in the process, saving precious judicial time. As aforesaid, she is a 41 years old mother of 7 children, 5 of whom are still school-going. She has also been in custody since her arrest about 16/04/2022. I also consider her apparent desire to be re-integrated to the community to rebuild her life and take care of her young innocent children, who must be suffering in the absence of the parents. Although there does not seem to be any eye-witness to the killing, the manner in which the incident is reported to have occurred also indicates that it was not premeditated, but rather, a reactionary spur of the moment act, almost a case of self-defence or provocation. As aforesaid, the accused seems to have endured a long period of suffering from the deceased’s alcoholism-related aggression, and may have reached the breaking point. This may have influenced her reaction on the fateful date. The accused also did not wait to be arrested but presented herself to the Chief on the next morning to whom she reported herself, and who then handed her over to the police. 18.I find the above matters to constitute mitigating circumstances deserving to be considered. 19.I however also consider the grave manner in which the offence was committed and the aftermath conduct of the accused. I say so because noting that there was a river nearby, the accused, after realizing that the deceased may have been dead, dragged him outside, and since their home is on a hill, pushed the deceased down the hill where he rolled downwards and ended up in the river, as the accused had indeed intended, as a way of concealing evidence. This was a most inhuman way of treating the dead. She did not even bother to imagine that perhaps the deceased may have still been alive and could probably have been saved by quick medical intervention. By “hacking” the deceased right on the head with the axe, the accused person’s intention was clearly to ensure that she fully deprived him of his life. The accused clearly intentionally executed a decisive, swift and aggressive attack on one of a human being’s most vulnerable areas of the body with precision, which act cannot be said to have been accidental. There is also no indication that the deceased, even if he was the initial aggressor, had at that point physically harmed the accused. All he is indicated to have done was to have threatened the accused with the axe. The accused person’s reaction was therefore clearly unnecessarily excessive. 20.In the circumstances, and although the accused saved precious judicial time by entering into the plea-bargain agreement, and although the family of the deceased is said to have forgiven her accused and proposed for her release, which facts I have taken into account, I find that a non-custodial sentence would not be appropriate in this case. The proposal by the relatives of the deceased for release of the accused also seems to be motivated more by the fatigue of the heavy burden of taking care of her children rather than a genuine desire to seek leniency on her behalf. In this case, a life was lost and the Court must reiterate that, save for the limited circumstances permitted in law, it is not acceptable to take a human life extra-judicially whatever the circumstances or level of provocation. I will thus impose a prison sentence. Since however I find no indication that the accused was at any point released on bond or bail during the more than 4 years period that she spent in remand custody during the trial, such period shall be factored in computing the prison term that she shall serve. Final Orders 21.I therefore make orders as follows:i.The accused, Emily Jepkoech Koech, is hereby sentenced to serve seven (7) years imprisonment.ii.As stipulated under section 333(2) of the Criminal Procedure Act, the period already spent in remand custody by the accused before sentence shall be deducted in the computation of the period of imprisonment to be served. For avoidance of doubt therefore, the prison term shall be computed as from the date of arrest, namely, 16/04/2022. DELIVERED, DATED AND SIGNED AT ELDORET THIS 22ND DAY OF MAY, 2026.…………………WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:The Applicant (virtually from Eldoret Main Prison).Mr. Oburu for the Accused.Ms. Mwangi for the State.Court Assistant: Rodgers Tshombe.