[2023] KEHC 26422 (KLR)

Republic v Kosgei (Criminal Case E035 of 2021) [2023] KEHC 26422 (KLR) (14 December 2023) (Sentence)

Neutral citation: [2023] KEHC 26422 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E035 of 2021

RN Nyakundi, J

December 14, 2023

Between

Republic

Prosecutor

and

Simon Kipprugut Kosgei

Accused

Sentence

1. The convict was initially charged with offence of murder contrary to Section 203 of the Penal Code. The brief facts were that on the 9th day of April 2021 at Kenduiywo Turbo sub-county he murdered Prisca Jerotich. However, through Plea bargaining agreement under Section 137 (a)-137(o) of the CPC the convict pleaded to a lesser charge of manslaughter contrary to section 202 & 205 of the Penal Code. The plea agreement was duly signed and endorsed by both parties on 27th November 2023. Having endorsed the plea agreement and the court proceeding to admit the plea within the requirement of the law conviction ensued and thereafter sentencing hearing.

2. It is now the court’s task to proceed and hand down an appropriate sentence of the offence. It is trite that the imposition of a fair and proportionate sentence is not a mechanical function but one which is nuanced with legislative framework and the anatomy of judicial discretion. The court is required to weigh and balance a variety of factors as outlined in the Francis Muruatetu case (2017) eKLR to determine the measure of the blameworthiness of the accused person. As developed by the Supreme Court on the Muruatetu case, the court has to consider the convict personal circumstances, the seriousness of the crime and the surrounding circumstances in which it was committed, the sentencing principles like deterrence, rehabilitation, proportionality, reparation, equality, and etc. In the case of Veen v The Queen (No. 2 )(1987-88) 164 CLR at 476 Per Mason CJ, the court had this to say on sentencing discretion:“However sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

3. In arriving at the sentence of the accused persons, I have taken into account the submissions by learned counsel Mr. Miyienda on mitigation incorporating the aspects of the convict person being first time offender, that as appropriate he is remorseful and regrets the criminal acts which culminated in his arrest and subsequent prosecution. It was also the case for the prosecution that the offence committed by the convict is serious in which learned prosecution counsel Mr. Mugun proposed a sentence of 10 years imprisonment. In overall consideration I take the following approach. First by reflecting and guiding jurisprudential principles on sentencing.

4. In S v Matyity2011 (1) SACR 40 (SCA) para 13 the court provided the differential minimum between regret and remorse as follows:“There is moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless tht happens, the genuineness of the contrition alleged to exist cannot be determined. After all before a court can find that an accused person genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed: what has since provoked his or her change of heat. Whether he or she does indeed have a true appreciation of the consequences of those actions.

5. Given this background, one has to take into account the surrounding circumstances upon which the cruelty of that high magnitude used by the accused person against the deceased. In consideration of the aggravating factors, the mitigation offered by learned counsel on behalf of the accused and further his respective personal circumstances a serious crime of this nature impacting on the right to life in Article 26 of theConstitution it is appropriate to impose a sentence with a deterrent effect. Such sentencing regime calls for this court to exercise discretion and to have the convict sentenced to 10 years imprisonment with effect from April 21, 2021. It is so ordered. 14 days Right of Appeal explained.

DATED, SIGNED AND DELIVERED AT ELDORET ON THE 14TH DAY OF DECEMBER 2023. ……………………………………R. NYAKUNDIJUDGE