[2023] KEHC 2479 (KLR)

Republic v Langat & another (Criminal Case 10 of 2016) [2023] KEHC 2479 (KLR) (22 March 2023) (Ruling)

Neutral citation: [2023] KEHC 2479 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 10 of 2016

TM Matheka, J

March 22, 2023

Between

Republic

Prosecution

and

Wesley Kipchirchir Langat

1st Accused

Miriam Chepkoech Sigei

2nd Accused

Ruling

1. Wesley Kipchirchir Langat and Miriam Chepkoech Sigei are charged with murder contrary to section 203 as read with section 204 of thePenal Code. The particulars being that on the February 17, 2016 at Ainamoi Village Likia Location in Njoro District within Nakuru county, murdered Vyonne Chepkurui.

2. Plea was taken on March 7, 2016 and the accused persons were each granted bond of Kshs 500,000/= each with a surety of the same amount on April 15, 2016. They were both assigned the same counsel – Mr Ochang. The matter proceeding for hearing on June 30, 2016 before Maureen Odero J.

3. By April 12, 2018 seven witnesses were heard, then the judge was transferred.

4. The matter moved to Ngugi Joel (Prof) J. (as he then was). The accused persons opted to proceed from where the matter had stopped onJune 14, 2018. It was later referred to Mulwa J. on November 14, 2018 for hearing and determination.

5. It was mentioned before her for hearing date on December 17, 2018, counsel was not available. The accused persons informed the court that they had never seen him.

6. Matter was fixed for hearing on the February 12, 2019 and February 14, 2019 with a directive that defence counsel be informed.

7. On February 12, 2019, he was absent, but there were no witnesses. Matter was fixed for March 14, 2019 – when it was fixed for hearing on April 30, 2019. Ms Ochange held brief for Mr Ochang. He was absence on April 30, 2019 and the court directed assignment of new counsel for the accused persons.

8. This happened by June 27, 2019 when record shows that Mr Murunga was brought on board – matter was given hearing date of July 24, 2019. The prosecutor did not have witnesses. Mr Murunga informed the court that the accused persons were asking for plea bargain agreement. Matter was fixed for September 30, 2019, then October 30, 2019 – when the parties were given two weeks to conclude the plea agreement.

9. The matter was not concluded by February 3, 2020 when the judge was transferred and matter assigned to Ngetich J.

10. On July 8, 2020 the record shows that the court prosecutor Ms Rita informed the court that the plea agreement proposed by the accused persons had been rejected and she now wanted a hearing date. Matter was fixed for mention on July 22, 2020 for fixing of a hearing date on October 13, 2020.

11. The matter never took off until the judge was transferred and was assigned to me on May 17, 2022.

12. Immediately the accused persons appeared before me – they each pointed out that they had problems with the advocates assigned to them because they had never engaged them/ or gone to see them at the remand.

13. The plea bargain agreement picked up on May 24, 2022. This time the representation was sorted out – Mr Maina for A1, Mr Murunga for A2 – and issue of typing of proceedings.

14. A date was fixed for the plea agreement for August 17, 2022 – with default dates for hearing fixed for 22nd, 23rd 29th and November 30, 2022, and December 5, 2022. The matter did not proceed. After further mention, our dates were fixed for 14th and 15th February, 14th and May 15, 2023. Mr Muanga for 2nd accused was having challenges appearing for the matter.

15. After other mentions – the ODPP delivered a plea agreement and was agreeable to the defence. The same was rendered on January 31, 2023. Seven years since plea was taken, I proceeded to comply with the provisions of section 137 of the Criminal Procedure Code.

16. Each of the accused persons confirmed that they had received legal advice on the issue and had opted to plead to the lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

17. The charge was read to each of them, and each pleaded guilty. The facts were:-“On February 17, 2016 at around 1620 hrs one Elizabeth Chelangat who is the grandmother of 1st accused person Wesley Langat visited him and his wife Miriam Sigei. Upon arrival he found their house locked from inside but she heard the two laughing loudly from inside. On looking around, she saw scattered clothes of both the 2nd accused and deceased. She tried to call them but nobody responded. She decided to go back to her house, while at her residence she heard screams from the accused house, and she rushed back, this time she found the clothes which were scattered outside burning, on entering the house, she saw the 2nd accused Miriam holding the deceased who appeared was not breathing. The 1st accused was inside the house but doing nothing about it. She started screaming. Members of the public came and adviced them to take the child to hospital. They left on the motorbike, on the way, they met anyway mob who vowed to lynch them because words had gone around that the two had killed their child. The child was pronounced dead on arrival at Egerton hospital. Matter was reported at Njoro police station. The postmortem was conducted and the causes of death was had injury attended to by brain contusion. The two were charged with murder of the child.”

18. The accused persons pleaded guilty to the facts, and each was accordingly convicted. Pre-sentence reports were sought from probation. After care service – Nakuru to assist and aiming at a fair and just sentence.

19. From the two reports, is evident that the 2nd accused person was a minor (16) at the time of the offence – she had already giver birth to the victim of this case with one Dennis – with whom she had a relationship upon dropping out of school and taking up the job of a house girl. The relationship did not last and she later hooked with her co-accused – the 1st accused person. By then the child was 2 years old. The two had a rocky relationship – and on a day before the death of the child he had set the 2nd accused and the child’s clothes on fire.

20. The 1st accused’s version is that he was with the child in the house when the child climbed on top of fireplace in the house – that the child feared motor bikes. She saw him picking his helmet and scrambled to get down from where she was. In the process she fell from that height and hit the table in the room on her head. That the 2nd accused found him trying to fan the child who was rolling her eyes – she confronted him , in the process his grandma heard them - she (A2) is the one who raised alarm.

21. When neighbours came and a crowd formed – they were “mob injusticed” on allegation of killing their child as someone else took the child to hospital. The police rescued them and placed them in cells. The child died and they were charged with this offence.

22. It is clear from the reports that time has passed and wounds have healed. The two accused persons have been in custody since 2016. PACS recommends a probation order for supervision for 2 years each.

23. The community has no issue which they gave back home – and getting reaccepted back in society. However, for Wesley, when the offence was committed he was living at his grandmother’s. the community there are of the view that he should go back to his home in Sururu Location, Kiptulel Sub-location Kanungei Village. The accused is remorseful, and regrets the offence. The prosecution had no objection to the sentence proposed.

24. For the 2nd accused – it is alleged she was 16 when the offence occurred – though in her statement upon inquiry it was written she was 21 at the time. However, one maintains she was born in 1998 and would have been 16 years old in 2016. She blame her co-accused –because he is the one who was with the baby when the incident of alleged falling happened. She says that the crowd that formed blamed both and beat them for killing their baby. She lost her baby. She has been in custody for 7 years. PACS recommends two year probation supervision.

25. I have carefully considered each of the reports – each contains the mitigation by the accused person and the recommendation from community.

26. Each accused has spent seven years in remand custody – each has served punishment from the offence. The probation supervision order should ideally just serve the purpose of reintegration.

27. I consider that and order that the 1st accused be placed on probation supervision for 18 months - then to move to Sururu.

28. The 2nd accused be placed on probation supervision for 12 months - she is remaining in her home. Each accused to abide by the probation order.

Delivered, signed & dated this22ndday of March, 2023. ………………………………….MUMBUA T. MATHEKAJUDGERLG.NKR.HCCRC 10 OF 2016 Page 4