Republic v Kogei (Criminal Case E059 of 2023) [2026] KEHC 9146 (KLR) (26 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE** **CRIMINAL CASE NO.E059 OF 2023** **REPUBLIC................................................................PROSECUTION** **VERSUS** **MUSA KIPYEGON KOGEI……..…………….………….. ACCUSED** **JUDGMENT ON PLEA AGREEMENT** Musa Kipyegon Kogei is charged with murder contrary to Section 203 read with Section 204 of the Penal Code. That on 28/1/2023 at Mogotio Township Sub-county Baringo County he murdered Jemimah Wangari Ngugi. He pleaded not guilty on 24/7/2023. Plea bargaining began in mid-May 2024. On 18/11/2024, accused told the court that he was agreeable to plead to manslaughter. I took over the matter on 16/4/2026. The matter had not taken off, and the PBA was not in sight. I gave the matter two hearing dates 13th and 14th of 2026, leaving room for the Pre Agreement. On 13/5/2026 the court was told that parties had entered into a plea agreement and the accused had agreed to plead to the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The charge was read to him. He pleaded guilty. The facts were read by the prosecutor. She stated On the 28th of January 2023 at around 10pm a report was made at Mogotio police station by members of the public that an unknown woman had been stabbed by her boyfriend within Mogotio Township. That the woman was rushed to Mogotio Subcounty hospital for treatment but had unfortunately succumbed to the injuries while receiving treatment at the facility. Following the report Officers from DCI Mogotio visited Mogotio Subcounty hospital where they established that the deceased Jemima Wangare Ngugi was a former employee of a Bata Shop within Mogotio Township, that the accused who was her boyfriend had been stabbed her on both arms using a knife, and had fled from the scene. The incident occurred near Umoja shop within Mogotio shopping Centre. The officers also established that the body of the deceased had been taken to Nakuru Annex awaiting postmortem. The officers visited the scene near Umoja shop. There was a pool of blood on the veranda of the shop. They managed to get his phone number from the persons at the scene. On the 1st of February 2023 the Postmortem examination was conducted on the body of the deceased by Dr. Titus Ngulungu in the presence of her relatives and a police officer from DCI Mogotio. They established that the cause of death was chest injury attended by cardiac muscle stab injury secondary to massive hemothorax following sharp trauma to the chest; homicide. Specimens : vaginal swabs, pubic hair, finger nails and blood. were removed for further examination. On the 3rd of February, 2023, officers from DCI Mogotio visited the accused’s rental house within Mogotio Township. The house was locked and after confirming that the house belonged to the accused who was still at large, the officers broke into the house in the presence of the landlord and recovered the following items:- * A black short sleeved t-shirt with cartoon decorations on the front. * A navy blue blazer * A white brassiere * A pink and red flowered face towel * A brown pair of sandals * A pair of pink plastic shoes branded size 38/39 * A torn blue/black/beige multicolored ‘Kitenge’ dress * A small white torn piece of cloth * A grey short sleeve t-shirt * A knife with maroon plastic handle branded ‘kiwi’ On the 21st of May, 2023, the accused person was arrested within Radat centre by officers from Mogotio following a tip off from members of the public that the accused had been spotted in the area. He was escorted to Mogotio police station where he was booked awaiting arraignment before court. The samples obtained from the body of the deceased together with buccal swabs taken from the accused and the items that were recovered from house of the accused were escorted to the government chemist for DNA analysis and the results linked the accused to the offence. 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 the items that were recovered from house of the accused, the inventory of recovered items dated 3/02/2023, the Postmortem form dated 01/2/2023, the Government analyst report dated 19th September 2024, and the exhibit memo form. The accused pleaded guilty to the facts and was convicted accordingly. I sought a Pre-sentence report and held a sentence hearing. Ms. Omari for the state submitted that the accused was a 1st offender, that though his family approached the family of the deceased, there was no reconciliation, but he readily admitted the offence. That the victim was 17 years old, and the family was still heart broken. However, considering that the accused had pleaded guilty to manslaughter, they proposed 15 years imprisonment relying on *Wafula –vs- Republic [2026]eKLR*. Mr. Kipkulei for the accused submitted that the accused was a young man, 27 years old with no family, very remorseful, acted out of anger, and that the offence was accidental, arising out of a love triangle relationship between the accused, deceased and another man. That the accused found his girlfriend with another man in his house he could not control his anger, he stabbed the deceased. That he had reached out to the family of the deceased, the outstanding issue was compensation.He urged the court to take into account the period he had already spent in custody. I have carefully considered the submissions by counsel and the authority cited. The issue is what is the appropriate sentence in this case? The Pre-sentence report states as follows ***Circumstances of the offence*** *“ The accused admits to the offence as charged. He further states that in the year 2022 he married the victim and started living with her at Kambi ya moto village. They then moved to Mogotio town where he operated a beauty shop while the victim worked at the Bata shop as an attendant. He says life was good until the said day at night while they were from watching a movie while drunk that the victim disappeared with another man. He claims that he was carried away by emotions and committed the said offence. He and the victim were cohabiting together and he is very heartbroken when he narrates what happened on that fateful day. He is apologetic and he claims he has meditated and decided to make a positive turn to his life. He has promised to change for better.* ***Views of the Victim’s Family*** *The mother informed us that the deceased was aged seventeen year’s old born out of wedlock. She got married to someone else leaving her under the care of her grandparents. The deceased grew up well and attended school up to form three at Njoroge Secondary school when she disappeared from home without the consent of her grandparents. They reported her disappearance to various police stations and efforts to trace her whereabouts proved futile until the time of her demise when they learnt that she was staying with the accused person. The family is heartbroken for losing a young soul in whom they saw a bright future.* *They admit that the accused’s father and his kin visited the home some days after burial with a view to seek for forgiveness, they had a lengthy talk and they agreed to pay the family one hundred and fifty thousand shillings as a compensation for the loss. They want justice for their child, they say it has been two years down the line yet the family have not been able to honour their promise. They feel threatened by the offender; the mother informed us that she has been receiving phone calls of the accused person while in remand stating that if released he was to go after the deceased’s young sister, they fear for their life should the offender be released.* ***Conclusion*** *The offender admits the offence and claims that he was drunk and did not understand his actions. A social inquiry conducted reveals that;* *The offender grew up in a dysfunctional family and can classified as a victim of poor parenting. His father abandoned them when they were still young and married a second wife hence he lacked a role model at home. He started exhibiting truant behaviour with the onset of puberty. He became indisciplined, irregular in school, performed poorly in class and opted to drop out at will. He then joined negative peers who influenced him into antisocial activities.* *There have been desperate efforts by the family and other community members to have the offender reform but he has continued to hone his criminal tendencies. The National Administrators indicated that the offender is a danger to the community and that they are currently at peace as a result being in remand.* ***Recommendation*** *In view of the above circumstances and the fact that the home environment is hostile I find the offender unsuitable for non-custodial sentence. I thus reserve the verdict to the honourable courts discretion on an alternative sentence to deter the offender from future criminal tendencies”.* From the foregoing and from the post mortem report it is indicated that deceased is said to have been 17 years old, married another person before she disappeared from home . She was also a former employee of the Bata shop at Mogotio and it is doubtful that she would have been 17 years old and an employee of the Bata shop. That said, the deceased was a young woman, girlfriend of the accused. she sustained stab wounds that severed her 5th rib, pierced the middle lobe of the right lung, on the right side, stabbed right atria, slicing the papillary muscles, and stab wound of the left chamber of the ventricle. The cause death was chest injury attended by cardiac muscle stab injury and massive hemothorax due to sharp trauma to the chest. In ***Wafula –vs- Republic [2026] KECA 280 KLR***, the Court of Appeal found that the charge of murder had not been proved and set aside the charge of murder, substituted it with manslaughter, set aside sentence of 30 years, substituted with 15 years’ imprisonment. In that case the deceased sustained similar injuries to this one, cause of death was a penetrating chest and abdominal injuries inflicted by sharp object. I have considered the circumstances of the offence. The accused acted as if he owned the deceased. He did not have to kill her, he could have ordered her and the strange man to leave, why did he not deal with the intruder , the man who had disrespected his space? He could have reported the police, or the neighbours, any other non-life threatening manner other than to kill the deceased, by killing her he was making a statement, if she could not be his girlfriend she was better off dead, this is not something that can be allowed to prevail, when romantic relationships break up, parties involved must learn to accept and move on. Due to the increasing cases of intimate partner killings Kenyans are saying **ukiachwa -achika,** no life should be lost because of a “love triangle”. Those involved should just ‘break up into lines and find other lines to form whatever shape they want’, death, is not a shape, it is not a solution, it is an end, should never be the outcome. The sentencing policing guidelines say the following on manslaughter ***Where an unlawful killing is done without an intention to kill (or cause grievous bodily harm?), the offence of manslaughter may be made out. In sentencing such cases, as with murder, the focus must lie primarily upon culpability.*** *With manslaughter cases, the degree of culpability may vary widely, from the ‘one punch’ manslaughter to the case involving a prolonged campaign of domestic violence which ultimately results in the victim’s death. The focus must be on the offender’s actions and intentions at the time of the crime in assessing the degree of culpability. Sometimes a nuanced approach is called for.* *5.2.7 In addition to the generic features contained in the GATS, some features that are relevant to assessing culpability in manslaughter cases include, but are not limited to the following:* *i. Where death was caused in the course of an unlawful act which involved an intention by the offender to cause harm falling short of grievous bodily harm e.g., one punch that caused the victim to fall and suffer a catastrophic and fatal brain injury.* *ii. Where death was caused in the course of an unlawful act that carried a high risk of death or grievous bodily harm which was or ought to have been obvious to the offender e.g., driving a motor vehicle dangerously through a crowded street.* *iii. Where death was caused in the course of committing or escaping from a serious offence. iv. Where the offender tried to conceal the offence by concealing, dismembering, or destroying the body.* *v. Where death was caused in the course of self-defence or defence of another (though not amounting to a defence).* *vi. Where there was no intention by the offender to cause ANY harm AND no obvious risk of anything more than minor harm e.g., the offender pushed the victim out of the way and the victim fell and suffered a fatal injury. vii. Where the offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity. Examples might include the woman who suffers severe post-natal depression, or the war veteran who suffers post traumatic stress disorder to the extent that he behaves in a way that is erratic and violent in the face of ordinary day-to-day stressors.* *viii. Where there has been a history of violence towards the victim by the offender, this might be relevant to sentencing.* *ix. Significant mental or physical suffering caused to the deceased.* *x. Where the offence involved use of a weapon.* *xi. Offence committed in the presence of children (particularly relevant to domestic violence deaths)* The accused is a first offender. He admitted the offence by entering into a plea agreement. He has expressed remorse. However, he stabbed the deceased severally, and vehemently. He caused her painful, unlawful death. The deceased suffered pain, lost a lot of blood. Her family is still in pain, which explains the collapse of negotiations. In the circumstances, I find that a custodial sentence would serve all the aspects of this offence, the accused needs time to reflect on his life, to pay for what he did, and the family to get reprieve. He is sentenced to 15 years’ imprisonment with effect from the date of arraignment in court 10th July 2023. **Judgment on Plea Agreement Dated, signed and delivered at Eldama Ravine on 26th June 2026** **MUMBUA T. MATHEKA** **JUDGE** Court Assistant – Karanja Accused – Present Ms. Omari for state Mr. Kipkulei for accused