[2023] KEHC 26000 (KLR)

Republic v Lang’at (Criminal Case 21 of 2019) [2023] KEHC 26000 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26000 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 21 of 2019

RL Korir, J

November 21, 2023

Between

Republic

Prosecution

and

Kipkorir Lang’at alias Peter

Accused

Ruling

1. On the morning of 30th August 2019, Kipkorir Langat alias Peter (Accused) ordered his wife Lorna Chebet to go and get her salary advance from her employer for his use and to meet the family expenses. She declined, choosing instead to save it for a rainy day. Her refusal to go for the money irked her husband who warned her not to cook for him that day and further issued the threat that he should not find her at home when he comes back. What began as a domestic squabble ended in the grisly murder of the couple’s innocent children Boaz Kipkirui and Elphas Kipkemoi aged 7 and 4 respectively.

2. The Accused was charged with two counts of 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 30th day of August 2019 at 2300hrs at Siomo village, Siomo sub-location in Konoin sub-county within Bomet County, the Accused murdered Boaz Kipkirui, a juvenile aged 7 years and Elphas Kipkemoi, a juvenile aged 4 years.

3. During the trial, the court heard (PW1’s evidence) that the Accused left their home while Lorna Chebet carried on with the domestic chores and also undertook some casual labour of picking tea. When evening came, fearing that the husband might come and harm her following his threat, she picked two blankets and went with the children to seek refuge in her brother-in-law’s house. The brother- in- law was the elder brother of the Accused. They were given supper and a place to sleep.

4. At about 8. 00 pm, the husband tracked them to his brother’s house and when she declined to open the door to the kitchen house where they were sleeping, he kicked the door open. As she rushed out to escape, the Accused wasted no time in pulling the children out, one by one. He smashed them on the ground, and proceeded to cut them on the head using a sharp sickle. The younger child died on the spot while the older one was pronounced dead on arrival at the hospital.

5. At the conclusion of the trial, this court found the Accused guilty of the two counts of murder and convicted him under section 215 of the Criminal Procedure Code. The court held in its judgement that: -74. “From my consideration of the evidence above, it is clear to me that the Accused had the requisite mensrea while committing the heinous acts. In crashing his youngest child to the ground and slashing his head before slashing the older one’s head demonstrated a malicious intention. He planned to execute the killing by arming himself and going all the way to his brother’s house to smoke out the wife and children who had gone there to seek refuge. Indeed, he had earlier threatened the wife that “she should not cook for him” and that “he should not find her at home.”

6. Upon convicting the Accused this court directed the Probation Officer to file a comprehensive pre-sentence report and a Victim Impact Statement.

7. The court subsequently held a sentence hearing on 26th July 2023. Learned defence counsel Ms. Kosgei submitted that the Accused was remorseful for what happened to his children. That he had been in custody since 2019 and was now transformed as he had undertaken Bible studies and was ready to impact the community. Counsel further submitted that the Accused was a first offender and had prior to his arrest been providing for his elderly parents. Counsel urged the court to consider the Accused’s prayer for a non-custodial sentence.

8. Mr. Waweru, the learned Prosecution counsel submitted that the Accused was a first offender. He urged the court to consider the grave circumstances of the case in which the Accused murdered his two children of tender years. That the children must have undergone intense trauma and pain before they died. It was the Prosecution’s submission that instead of the Accused protecting his children, he brutalized them.

9. The Prosecution prayed for a deterrent sentence that will send out a strong message that marital conflict should not be taken out on the children.

10. This court took a keen interest in the mitigation of the Accused to understand why the Accused would mercilessly slaughter his young innocent children in full view of their mother. As stated by the Supreme Court in the case of Francis Karioko Muruatetu & Another, Supreme Court Petition No. 15 of 2015 (2017) eKLR:-“It is during mitigation, after conviction and before sentencing, that the offender’s version of events may be heavy with pathos necessitating the court to consider an aspect that may have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness.”

11. The Accused personally addressed the court and stated that he had been transformed while in prison. That he had accepted his mistake and had improved himself by undertaking several courses in prison. He prayed that this court considers the period he spent in remand.

12. It was clear from the mitigation of the Accused that he steered clear of the events and circumstances of the offence and chose to focus on the present where he said that he was now reformed and prayed for leniency. His mitigation did not therefore shed any light on what may have motivated him to commit the heinous crime. There was nothing in his mitigation calling for pity.

13. A pre-sentence Probation Officer’s Report was filed on 26th June 2023 and it stated that the Accused was ready to accept the court’s sentence but he pleaded for mercy as the offence was not intentional.

14. The Probation officer’s report stated that the offender was 35 years old. He dropped out of school at class 8. He had tried his hand in tea buying and selling business and was at the time of the incident a casual labourer picking tea. He was married to the mother of the deceased children though they were yet to formalize their marital union. The report further stated that his parents and family was shocked by the offence whose magnitude they understood and craved an opportunity to seek forgiveness and reconciliation from the family of the mother of the deceased children. That they beseeched the court to be lenient with the Accused who was hitherto a law abiding and hard working person.

15. According to the Social inquiry report, the Community where the Accused was born and raised condemned the offence. They were of the opinion that a deterrent sentence would send out a clear message that the offence of murder was serious and it would not be tolerated.

16. A Victim Impact Statement was filed on 25th June, 2023. According to the report, the victim Lonah Chebet was 31 years old and had a secondary school education and a certificate in Early Childhood Education. She was the wife of the Accused of 4 years and was an early childhood teacher at a local primary school. The report states that the relationship between the Accused and the wife was tumultous and characterized by mistrust and suspicion of unfaithfulness.

17. The Victim report captured the impact of the offence on the victim thus;“She narrated how the sight of the accused brings emotional torture to her making her uncomfortable with coming to court during her case proceedings. She feels embarrassed with the situation, she has lost her self-esteem, confidence and always living in fear. She is now slowly recovering from grief having a sense of life purpose and having additional children. The family reported that she was experiencing extreme emotional loneliness and severe depressive symptoms. She therefore needs social support and professional counselling that can help her cope with stressful events of children loss.”

18. This court is guided by the objectives of sentencing as set out in the Judiciary sentencing Guidelines 2023 paragraph 1. 3.1. They include retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. In R vs Scott (2005) NS WCCA 152, Howie J. Grove and Barn JJ stated that: -“There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crimes committed. . . . one of the purposes of punishment is to ensure that an offender is adequately punished. . . a further purpose of punishment is to denounce the conduct of the offender”

19. I have taken into consideration the circumstances of the case, the Accused’s mitigation and the Probation Officer’s pre-sentence report and the Victim Impact Statement. It was clear to this court that the Accused transferred the disdain and malice he had for his wife to the helpless children who became the easy target of his rage. It was a case of transferred malice for which the innocent children lost their lives. There was no doubt that the Accused set out to first drink to get the courage to commit the heinous act, then armed himself with a sharp sickle panga and when he could not kill the wife, killed the children. The murder of the children had a lasting devastating effect on the victim as shown in the Victim Impact Statement above. This therefore was a case calling for the most deterrent sentence. The Accused must be punished for his evil deed.

20. The maximum sentence for murder is death. Section 204 of the Penal Code provides: -Any person convicted of murder shall be sentenced to death.

21. This court is aware that the validity of the death sentence was saved for cases that fell under Article 26(3) of the Constitution. In the case of Francis Karioko Muruatetu (supra), the Supreme Court held that:-“The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26(3) of the Constitution.” (Emphasis mine).

22. In Republic v Ruth Wanjiku Kamande Nairobi High Court Criminal Case No 93 of 2015 [2018] eKLR Lesiit J (as she then was) in handing down the death sentence held that:-“In terms of sentence, the sentence for murder is the death penalty. It is true that pursuant to Muruatetu case, supra the courts now can exercise discretion when considering and passing sentence. It is important to say that in my view that discretion to pass a sentence other than death in capital offences should only be exercised in the deserving cases. I do not find this a deserving case. I think to pass any other sentence than the one prescribed would turn the accused to a hero.”

23. It was clear therefore that the death sentence was still available and was reserved for the most heinous murders such as this one. However, this court is also aware of recent jurisprudence which question the efficacy of the death sentence, particularly because of lack of actual implementation.

24. I have considered the principle of proportionality. The Sentencing Guidelines 2023 at paragraph 1. 2.1 provides that: -“The sentence meted out must be proportionate to the offending behavior meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behavior is weighted in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender.”

25. In the end, having considered the circumstances of the case, the Accused’s mitigation and the Pre-Sentence Probation Officers Report as well as the Victim Impact Statement, I have come to the conclusion that the Accused deserves the most deterrent sentence.

26. The Accused is sentenced to serve 50 years’ imprisonment in Count One and 50 years in Count Two. The sentences shall run concurrently.

27. Accused has been in pre-trial custody and in accordance with Section 333(2) of the Criminal Procedure Code, the sentences shall run from 31st August 2019 being the day of his arrest and first arraignment in court.

28. The Accused has a 14 days right of appeal against both judgement and sentence.

29. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 21ST DAY OF NOVEMBER, 2023. ..........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for the State, Mr. Kipngetich Dancun holding brief for Ms. Brandy Kosgei for the Accused, Accused present and Siele (Court Assistant)