[2023] KEHC 25568 (KLR)

Republic v Korir (Criminal Case 3 of 2023) [2023] KEHC 25568 (KLR) (16 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25568 (KLR)

Republic of Kenya

In the High Court at Eldama Ravine

Criminal Case 3 of 2023

RB Ngetich, J

November 16, 2023

Between

Republic

Prosecution

and

Elius Kimeli Korir

Accused

Sentence

1. The accused Elius Kimeli Korirhad been charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars of the charge being that on the 4th day of August, 2021 at about 0700hours at Mlango Moja Trading Centre in Mumberes Location in Koibatek Sub- County within Baringo County, the accused murdered Dennis Kirwa.

2. The charge was read over to the accused who denied the charge and the trial process commenced. However, when the matter came up for mention before Hon Justice Teresiah Matheka on the 21st November 2022, the defence counsel mr Kipkulei informed the court that they wish to pursue plea bargaining in the matter. The court fixed for 22nd November, 2022 to confirm the plea-bargaining process.

3. On the 13th July,2023 the plea agreement was duly executed and the charge was reduced to manslaughter. On the said 13th day of July, 2023, the charge of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code and its particulars was read over and explained to the accused who pleaded guilty and was convicted on his own plea of guilty.

Brief Facts of the Case 4. On the 4th day of August, 2021 at about 1900hours, at Chepsito Bar within Mlango Moja area of Mumberes Location, the deceased was enjoying his white-cup can of beer in company of others at a room adjacent to the main bar. A few moments later, the accused stormed in while carrying with him a mug of Keg Beer and within no time and without any provocation, the accused banged the table, an act which irritated the room’s occupants who were peacefully enjoying the drink.

5. The accused’s unruly behavior prompted his father one Caleb Biwot who was in bar to intervene by urging him to stop disturbing customers but the accused continued to assault one Stanley Biwot alias Blacky for no apparent reason. At this point, the deceased got concerned and pleaded with the accused to stop the attack.

6. The accused’s father managed to remove the accused from the premises but the accused returned and entered into an adjacent food kiosk where one Brenda Cherobon was peeling potatoes and intimidated her before picking a knife which was placed on top of a sack of potatoes and hurriedly walked out heading to the private room where he stabbed the deceased on the left side of the neck before leaving the scene.

7. The deceased bled profusely while lying on the floor before he was rushed to Eldama Ravine sub-county Hospital where he was pronounced dead on arrival. After the heinous act, the accused fled towards his home at Kiptenden village leaving behind a murder weapon on a wooden bench, a white cap and his navy-blue jacket; and along the way, he removed his blood-stained white T-shirt and dropped it 750 metres along Kiptenden and disappeared into Kabimoi forest for fear of retaliatory attack.

8. Police visited and processed the scene and exhibits collected. On the 5th day of August, 2021, the suspect presented himself to Makutano Police Station where he was later picked and taken to Timboroa Police Station. An exhibit memo form was prepared, statements from potential witnesses recorded and on 13th of August, 2021, the deceased’s body was subjected to an autopsy. The daughter formed opinion that the cause of death was hypovolemic shock due to bleeding from a penetrating neck injury. The police file was compiled and the accused charged with the offence of murder now reduced to manslaughter upon plea bargaining agreement.

Pre-Sentence Report 9. The court called for a pre-sentence report to be filled before mitigation. It was filed on 18th October,2023. The report indicates that the accused was born in the year 1994 at Kiplongon village. He attended Kiplongon primary school up to class 8 where he scored 321 Marks. He joined Amases High School up to form four where he managed to score a grade of B-(Minus) in KCSE exam and in the year 2015, he enrolled at RVIST college to undertake a Diploma course in Pharmacy where he was schooling up to September,2018 when he was charged with the offence of murder. He is married with three young children aged between 5 and 3 years.

10. He prays to the court for leniency attributing the commission of the offence to anger and unresolved differences with his cousin. The parents and the wife to the accused stated that he did not have a history of a similar offence or other offences. The wife of the victim stated that she had suffered emotionally and economically following the loss of her husband as she providing for the needs of the children single-handedly. She however stated that she has forgiven the accused.

11. The area administrator stated that he is aware of reconciliation efforts between the family of the accused and family of the victim. He said the parties were reconciled and with agreement for accused’s family offering to pay some cows to the family of the late victim as a gesture of wiping their tears.

12. The Probation Officer confirmed that the victim’s and accused’s family reconciled in a final meeting on the 12th October,2023 in the presence of the area chief; that they agreed to forgive each other to foster harmonious co-existence since they come from two related clans. Relevant cultural activities were performed to seal the agreement before the area chief and minutes in respect to the two meetings were availed as documentary evidence.

Mitigation 13. The defence counsel mr Kipkulei mitigated on behalf of the accused. He submitted that the convict is a young man now aged 29 years old, very industrious and was supporting his family of 3 children aged between 5 years and 3 years whom he has left under the care of their mother who has no reliable source of income as the convict was the bread winner.

14. Counsel further submitted that the convict is remorseful for committing the offence, he never intended to kill the deceased whom he had been in good terms with; that he was intoxicated at the time of the offence and was unable to control his anger but having been in custody from 4th August,2021, he has undergone anger management therapy.

15. Counsel submitted that the convict has reconciled with the family of the deceased as shown in the report. That the convict regrets having committed the offence and prays for leniency. He submitted that the convict was undertaking a Diploma course in Pharmacy which he has not completed and wishes to go back and finish his studies. That the convict promises to be a law-abiding citizen after the court decides his fate and thus seeks for a non-custodial sentence.

16. The state counsel ms. Ratemo submitted that they are aware of the reconciliation talks by the two families. That she has spoken to the deceased’s mother who was in court and has also perused the minutes recorded during reconciliation process. she stated that she is also aware that compensation has taken place and state leaves the aspect of sentence to the discretion of the court.

Determination 17. Under section 205 of the Penal Code, a person convicted of Manslaughter is liable to imprisonment for life. However, the court has discretion to impose determinate sentence depending on circumstances of each case.

18. I have considered accused’s mitigation through his Advocate. I have also perused presentence report. I note that the family of the victim and accused have reconciled. This is confirmed by minutes prepared by the chief during reconciliation process. I also note that the accused and deceased were cousins, and the accused has been in custody since 4th August, 2021 a period almost 2 years now. While in remand, the accused must have had opportunity to reflect on his life and hence resolved to reform. From presentence report he was in college doing diploma in pharmacy. In view of the above, I am inclined to impose a noncustodial sentence.

Final Orders: -1. Accused placed on probation for a period of 3 years.2. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 16TH DAY OF NOVEMBER, 2023. ...................RACHEL NGETICHJUDGEIn the presence of:Mr. Karanja – Court Assistant.Accused present.Mr. Kipkulei for accused.Ms Ratemo for State.