[2022] KEHC 16189 (KLR)

Republic v Langat (Criminal Case 8 of 2018) [2022] KEHC 16189 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16189 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 8 of 2018

RL Korir, J

December 8, 2022

Between

Republic

Prosecutor

and

Weldon Kipyegon Langat

Accused

Ruling

1. The accused was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge were that on the 9th day of June, 2018 at Emitiot Sub-location, Cheboin location within Bomet County murdered one Wesley Kiprono Langat.

2. At the conclusion of the trial, this court found the accused guilty of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. In convicting the accused the court in its judgment dated 28/9/2022 held as follows:-“I find it as likely as it was unlikely that the accused may have had malicious intent to kill his brother. The prosecution evidence does not prove beyond reasonable doubt that the accused possessed the requisite mens rea when he caused the death of his brother. As the law demands, the benefit of doubt only on the aspect of themensrea must go to the accused. Without mensrea, the accused can only be guilty of the unlawful killing of the deceased."

3. This court heard the mitigation of the accused on November 3, 2022. Learned defence counsel Mr Kipngetich submitted that the accused was remorseful and prayed for leniency. That the family had reconciled and forgiven him. That his father was now sickly and missed the accused who used to take care of him. Counsel further submitted that the accused had a young family which he was taking care of.

4. On the present circumstances of the accused, counsel submitted that he was now reformed, born again and had taken on an admirable character. That he had undertaken Bible and theological studies, was baptized and promised to be a law abiding citizen. Finally, counsel asked the court to consider that the accused had spent 4 years in pre-trial custody. He prayed for a non-custodial sentence.

5. The accused’s father who was present was given audience by the court as required by section 9 and 12 of the Victim Protection Act, 2014. He asked the court to give the accused a lenient sentence. His wish was that the accused “should be given some discipline then released to come home”.

6. Mr Njeru, the learned prosecution counsel submitted that the court should consider the time the accused had spent in pre-trial custody. He acknowledged the accused’s efforts at reconciliation but prayed that justice be served for the victims. He asked the court to give a custodial sentence, however lenient.

7. This court is guided by the objectives of sentencing as set out in the Judiciary Sentencing Guidelines 2016. They include retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. In Thomas Mwambu Wenyi vs Republic (2017) eKLR, the Court of Appeal held that:-“As for the sentence, the Supreme Court of India in Alister Anthony Pereira vs State of Maharashtra at paragraphs 70-71 had this to say on sentencing:-70. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.71. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence.As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

8. I have considered the circumstances of the offence. The accused stabbed his brother when he intervened in a quarrel between the accused and their mother who was trying to stop the accused from cutting her trees. It was not clear to the court why the accused would resort to such an extreme measure as to slash his brother to death.

9. This court considers that the accused requires to be rehabilitated on anger management and also be given skills on how to earn his own living without resorting to violence to access the property of his parents, including the disputed trees. This court agrees with the accused’s father that “the accused should be disciplined”

10. I have taken into consideration the pre-sentence probation officer’s report filed on October 13, 2022. The report indicates that both the accused and the deceased were siblings and that the family had called a clan meeting to deliberate on the killing. That they resolved to forgive the accused and seek his release for traditional cleansing to be undertaken. The report also stated that the accused abused alcohol and drugs (bhang) and was not married. The report further stated that the deceased’s wife had come to terms with the loss of her husband, and had no more bitterness against the accused. The probation officer recommended a non-custodial sentence.

11. From the pre-sentence report and the submissions of the father of the victim, it is clear that the victim’s wish is to have the accused released on a probationary sentence. This court agrees with the learned prosecutor that the accused caused loss of life and deserves a custodial sentence. It is indeed important that there be proportionality. The maximum sentence for manslaughter under section 205 of the Penal Codeis life imprisonment.

12. In Priscillah Cherono Chebet & 2 others, (2016) eKLR, this court held as follows:-“It is my considered view that reconciliation ought to be given visible and viable space in criminal justice system as envisaged by article 159 of the Constitution. For both the offender and victims, genuine reconciliation brings closure to the loss however heinous the crime committed may have been. Reconciliation is even more critical where both the offenders and the victims are family, relatives, neighbours or friends. It therefore behoves the courts where the circumstances of a case permit, to promote reconciliation alongside penal sanctions. In my view, reconciliation speaks to the humanity of the offender and of the victim(s) while penal sanctions speak to society’s condemnation of the offender and the offence and the two ought to work in tandem”.

13. In this case the court has considered the desire of the victims to undertake traditional reconciliation and cleansing which they so value. In consequence, the accused shall be given a lenient prison sentence which will allow the family upon completion, to undertake their traditional/rites and find closure.

14. The accused is sentenced to serve 8 years’ imprisonment. The sentence shall be deemed to run from June 18, 2018 being the date of his pre-trial custody.

15. Orders accordingly

SENTENCE DELIVERED, DATED AND SIGNED AT BOMET THIS 8TH DAY OF DECEMBER, 2022. R. LAGAT-KORIRJUDGE**Sentence delivered in the presence of Mr. Suter for the State, Ms. Chepkemoi holding brief for Kipngetich, for the Accused, and Kiprotich (Court Assistant).