[2025] KEHC 52 (KLR)

Republic v Koskei (Criminal Case 1 of 2019) [2025] KEHC 52 (KLR) (14 January 2025) (Sentence)

Neutral citation: [2025] KEHC 52 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 1 of 2019

RL Korir, J

January 14, 2025

Between

Republic

Prosecution

and

Geoffrey Cheruiyot Koskei

Accused

Sentence

1. The Accused, Geoffrey Cheruiyot Koskei was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on 1st January 2019 at Kapkoros village in Bomet Central Sub County within Bomet County, he murdered Benard Kiprono Tanui.

2. The Accused was first presented before this court (Muya J.) on 25th February 2019 where he was supposed to take plea. It became clear to the court that the Accused was not fit to stand trial and the court issued several orders between the year 2019 to 2023 to have the Accused examined and Medical Reports filed for the court’s consideration.

3. After being declared mentally fit to stand trial as per the Medical Report from Kericho District Hospital dated 23rd June 2023, this court informed the parties that they were at liberty to plea bargain.

4. On 15th November 2023, the Accused confirmed to the court that he had voluntarily plea bargained. The Plea Bargaining Agreement was filed on 8th April 2024. The Plea Agreement indicated that the Accused had agreed to plead guilty to the lesser offence of manslaughter.

5. On 11th April 2024, this court accepted the Plea Agreement after interviewing the Accused and satisfying itself that he executed the Plea Agreement voluntarily.

6. On the same day (11th April 2024), the Accused took plea for the offence of manslaughter. The charge and every element thereof was read and explained to him in the Kipsigis language which he understood and he pleaded guilty. The court entered a plea of guilty for the offence of manslaughter.

7. The facts as read by the Prosecutor and captured in the Plea Agreement are as follows:-“On the night of 22nd December 2018, the Accused Geoffrey Koskei, the deceased Benard Tanui and one Mercy Cherotich had sought shelter from dredging rain at the home of Stanley Kipkurui. While there, a bitter row erupted between the deceased and the Accused over a t-shirt which the Accused alleged had been damaged by the deceased.During the altercation, the Accused picked a panga and cut the deceased on the head inflicting a deep cut. The deceased was rushed to Kapkoros Health Centre and referred to various other hospitals including Longisa, Tenwek and eventually Moi Teaching and Referral Hospital where he died on 1st January 2019. The cause of death was established to be brain abscess due to assault.The Accused was arrested on 1st January 2019 and charged with murder.The Prosecution accepts the following facts:-1. The deceased and the Accused had a fall out over a damaged piece of clothing which degenerated into a fierce exchange.2. The Accused picked a panga and inflicted a serious injury upon the deceased.3. That the attack was provoked and not premeditated.The Accused person accepts these facts and may be convicted for the offence of manslaughter.”

8. The Accused accepted the facts as true and the court convicted him on his own guilty plea for the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

Pre-Sentence Report 9. The report stated that the Accused suffers from epileptic related conditions which sometimes results in aggressive behavior when provoked. That the Accused admitted that he quarreled and hurt the deceased, actions that he regretted and was remorseful. The Accused and his family wanted this court to grant him a non-custodial sentence to enable him continue with proper medication for his epileptic condition. The local community were also not opposed to his release. That the Accused needed treatment and rehabilitation and they were ready to receive him if he was released.

10. The Probation Officer recommended that the Accused was suitable for community based rehabilitation through Probation.

Victim Impact Statement. 11. The report stated that the deceased’s parents had come to terms with the loss of their son. That they received support from the Accused’s family during the burial of the deceased. The deceased’s family received a heifer and money from the Accused’s family as the first step in reconciliation and they had scheduled a cleansing ceremony once the case was concluded.

12. The Report stated that the elders from the two clans held a series of reconciliation meetings whose outcome had been instrumental in forgiveness. That the victim’s family advocated for a lighter sentence for the Accused.

Accused’s Mitigation 13. Mitigation by the Accused was made on his behalf by his counsel, Mr. Kipngetich. Counsel submitted that there were several Reports filed in this court that showed the Accused was epileptic. That this court remanded him at some point so that he could access medication.

14. It was counsel’s submission that the Accused was remorseful and prayed that he be released on a non-custodial sentence. That the death was not intentional. It was his further submission that because the Accused suffers from a mental illness, he required special support and the help of the community.

15. Counsel submitted that the Accused’s family and the victim’s family were in the process of reconciliation. That the victim’s family had received a heifer. Counsel further submitted that the Accused’s family were assisting the Accused get a wife so that he could start a family.

Submissions by the State 16. Mr. Njeru, the learned Prosecution Counsel submitted that the Accused had saved State resources by plea bargaining. That they also appreciated that the families were in the process of reconciliation. He submitted that although reconciliation was encouraged, the community must see that crime is punished.

17. It was Counsel’s submission that a proportional sentence should issue. He made an observation that when the Accused was released on bond, his health deteriorated and he was better off in prison as he was being properly managed. It was his further submission that it was in the Accused’s family’s best interest that he remain in custody for some time as it would be unjust to have him released immediately.

18. Sentencing serves multiple purposes as enumerated in the Sentencing Policy Guidelines 2023 which outline the objectives of sentencing at paragraph 1. 3.1 as follows:-Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other- in so far as possible, sentences imposed should be geared towards meeting the objectives in totality.i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Community Protection.vi.Denunciation.vii.Reconciliation.viii.Reintegration.

19. The penal section for the offence of manslaughter is contained in section 205 of the Penal Code which provides:-Any person who commits the felony of manslaughter is liable to imprisonment for life.

20. I have considered the circumstances of the case. The Accused and the deceased got into an altercation over a t-shirt and the altercation led to the Accused cutting the deceased on the head with a panga inflicting a deep cut on his head. The deceased later succumbed to his injuries.

21. I have also considered the Accused’s mitigation that he was remorseful and regretted the event. This court appreciates the effort taken by the two families in reconciliation which was a positive step towards the healing process. I have noted from the deceased’s family that they wanted the Accused to be given a lenient sentence.

22. The Sentencing Policy Guidelines 2023 lists the common mitigation factors at paragraph 5. 1.15 thus:-i.Absence of any prior convictions or absence of any relevant/recent convictions.ii.Is there any evidence of the Accused’s good conduct or exemplary character?iii.Has the Accused demonstrated or expressed remorse evidenced by, for example, cooperation with the authorities, an apology, or an offer for reconciliation?iv.Did the Accused self-report?v.Was there minimal or no planning involved in the commission of the offence?vi.If acting with others, was the Accused in a lesser or subordinate role or did the Accused perform a limited role under the direction of others?vii.Did the offender become involved through coercion, intimidation, or exploitation that did not rise to an affirmative defence?viii.Did the Accused have a limited awareness or understanding of the offence?ix.Has there been a delay between arrest and conviction, that delay not being attributable to the conduct of the offender?x.Was the activity initially legitimate but subsequently evolved into illegal conduct?xi.Did the Accused’s age or maturity factor into the offence?xii.Is the Accused the sole or primary caretaker for dependent relatives? The consequences of the incarceration of the Accused on other vulnerable persons dependent on them such as children, elderly persons, bedridden persons etc should be considered.xiii.Evidence of disability or serious medical condition requiring urgent, intensive or long-term treatment.xiv.Mental disability or disorder.xv.Cultural or other factors that may have a bearing on how the offender reacted or behaved in the commission of the offence.

23. As earlier stated, it became clear to this court at the inception that the Accused was unfit to stand trial. This court on several occasions, ordered that the Accused be medically examined to determine his suitability to stand trial. Several Medical Reports were filed in this court regarding his capacity to stand trial being:-i.A Medical Report from Longisa County Referral Hospital dated 3rd January 2019 which found the Accused mentally sick and incapable of standing trial.ii.A Medical Report from Nakuru Level 5 Hospital dated 9th April 2019 which found the Accused mentally sick and incapable of standing trial.iii.A Medical Report from Longisa County Referral Hospital dated 6th November 2020 which found the Accused mentally sick and incapable of standing trial.iv.A Medical Report from Nakuru Provincial General Hospital dated 10th June 2021 which found the Accused unable to plead.v.A Medical Report from Kericho District Hospital dated 11th November 2022 which found the Accused had schizophrenia and epilepsy and was unfit to stand trial.vi.A Medical Report from Kericho District Hospital dated 23rd June 2023 which found that the Accused after treatment was of sound mind and fit to stand trial.

24. The issue of the Accused suffering from epilepsy was contained in the Pre-Sentence Report dated 15th May 2024 and in the Accused’s mitigation. However, in order to make an informed opinion, this court ordered on 16th July 2024 after the sentencing hearing, that the Accused be escorted to attend before a psychiatrist at Kericho County Referral Hospital for a current psychiatric evaluation and upon completion, a comprehensive medical report be filed in court.

25. The Psychiatrist Report dated 2nd September 2024 was filed on 5th September 2024. It stated that the Accused was mentally fit and a further recommendation that the Accused continue with medication with monthly psychiatric reviews. All the Medical Reports filed in this court did not capture the Accused’s state of mind while committing the offence. It is for this reason that the court could not have made a special finding on insanity. What was common in the Reports was that the Accused suffered from schizophrenia and epilepsy. As the trial medical report has stated, it was a condition that was manageable with medication and constant psychiatric review.

26. Having considered the above, it is my finding that Accused deserved to serve a custodial sentence. The nature of the deceased death was aggravating as the Accused cut him with a panga to his head. The Accused should have chosen better avenues to channel his anger. He must be held accountable for his actions. However, due to the Accused’s epileptic condition, the court shall temper justice with mercy and grant him a lenient sentence.

27. I hereby sentence the Accused to 3 years’ imprisonment from today. The prison authorities shall ensure that he attends periodic reviews for his epileptic condition.Orders accordingly

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 14TH DAY OF JANUARY, 2025. ..........................R. LAGAT-KORIRJUDGERuling delivered in the presence of the accused Mr. Njeru for the state, Mr. Mugumya holding brief Mr. Kipngetich for the Accused and Siele (Court Assistant)