[2023] KEHC 26491 (KLR)

Republic v Langat (Criminal Case E019 of 2022) [2023] KEHC 26491 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26491 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E019 of 2022

RL Korir, J

December 7, 2023

Between

Republic

Prosecution

and

Zadock Langat

Accused

Judgment

1. Zadok Langat (Accused) was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code cap 63 Laws of Kenya. The particulars of the offence were that on July 17, 2022 at Matogo village, Bomet Central Sub- County, within Bomet County, murdered Peter Korir.

2. The Accused was arraigned in court on July 28, 2022. He denied the charge and was remanded in custody pending the filing of a pre-bail assessment report. When the matter came up for pre-trial directions learned defence counsel Ms. Chepkemoi told the court that the defence having looked at the pre-sentence report did not wish to pursue their application for bail pending trial as there was real possibility of the Accused being harmed by the deceased’s family members who were also neighbours.

3. The matter came up for trial on 22nd February, 2023. Prosecution Counsel however informed the court that he had reviewed the evidence and wished to make a plea offer to the defence. He sought an adjournment to enable parties’ plea bargain.

4. A Plea Agreement dated 23rd March, 2023 was filed on even date for the court’s consideration. Subsequently, the trial faced delay as the Accused remained unrepresented for some time. On 2nd October, 2023, the Court accepted the Plea Agreement upon satisfying itself that the Accused was well informed of his trial rights and that he executed the Plea Agreement voluntarily.

5. The Accused subsequently took Plea on the substituted charge of manslaughter. He pleaded guilty and a plea of guilty was entered. The Prosecution counsel read the facts as follows: -On the night of 16th and July 17, 2022. At around 1. 00 a.m. the deceased person Peter Korir also known as Peter Mutai went to the house of Winnie Cherono, a thirty-year-old single mother of five children and who is mentally challenged. She used to live with her mother Catherine, who was at the time away attending a funeral ceremony of her brother. The deceased broke into the house and began raping Winnie. She screamed in distress, which attracted her brother, Zadock Langat, the accused who immediately rushed to the scene to rescue her.The accused found the deceased in the house and the deceased attacked him. A fierce fight ensued between the two. The accused picked a piece of wood and hit the deceased on the head. The deceased fell down bleeding and the victim of the rape screamed attracting neighbours who rushed to the scene. He was declared dead and police were called who collected the body to Longisa hospital mortuary. The cause of his death was established to be severe open head injury due to brunt trauma.The victim of the rape and her brother Zadock were arrested at the home and upon investigations, it was established that it is the accused who hit the deceased. He alone was then charged with murder.The Republic accepts that the deceased attacked the accused’s sister in the wee hours of the night and raped her. The accused in an attempt to save his sister killed the aggressor. We also accept that the accused acted in loco parentis in the defense of his sister. By an agreement dated 19th July 2022 by members of the Kibaek Clan to which the concerned parties belong, it was agreed that the two families forgive one another and resolve the matter traditionally.

6. The Accused confirmed the facts as true and was consequently convicted of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

7. The court called for a pre-sentence probation report and scheduled a sentencing hearing.

8. At the sentence hearing on 16th November 2023, this court heard the mitigation of the Accused. Ms Kosgei learned defence counsel submitted that the Accused was remorseful. She relied on the pre-sentence report to state that the Accused aged 34 years was of good standing in society. That he was the bread winner of his young family. That the deceased was his immediate neighbour and relative and that their families had reconciled. Counsel recounted the circumstances of the case that the Accused raped the Accused’s sister and a fight ensued in which the Accused hit the deceased on the head. That he had no intention of harming him. She submitted that the Accused was a first offender and prayed for a non-custodial sentence.

9. On his part the learned Prosecution Counsel submitted that the Accused was a first offender and that he committed the offence while rescuing his sister and that the Prosecution was not opposed to a non-custodial sentence.

10. Sentencing serves multiple purposes as stated in the Judiciary Sentencing 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.

11. Mitigating factors to be considered in determining an appropriate sentence were outlined in the famous Supreme Court case of Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR (SC Petition No. 15 &16 of 2015) as follows: -(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant.”

12. In this case, I have considered the Accused’s mitigation, the social inquiry report and the Victim Impact Statement. It was clear from these that the deceased was the aggressor who invaded the house of one Winnie, a woman stated to be mentally challenged and raped her. He was the intruder and an attacker out to commit sexual and gender based violence on a mentally challenged woman. While the dead cannot be condemned, this court takes the view that the deceased was on a despicable mission. He did not deserve to die but his action was provocative and the Accused who stood in loco parentis to the woman attacked can be excused from hitting the deceased. The fatality of the blow was unfortunate as he should have been arrested to face the full force of the law.

13. I have considered that the Accused was ready to take responsibility for the fatal blow and was remorseful. I have also considered that the families of the Accused and the deceased were neighbours. This to the mind of the court was one case where the objective of reconciliation and reintegration should be met. It is the view of the court as stated earlier that reconciliation has a place in criminal justice. In the case of Republic Vs. Priscilla Cherono Chebet & 2 others, Nairobi Criminal Case No. 65 of 2011 this court explored the place of reconciliation in criminal justice and held thus: -“It is my considered view that reconciliation ought to be given visible and viable space in the 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 behooves 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.”

14. In the end, I find that the Accused merits a non-custodial sentence. Such sentence in the circumstances of this case shall promote reconciliation between the deceased’s and offender’s families and the social reintegration of the Accused.

15. The Accused shall serve one-year probation.Orders accordingly

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 7TH DAY OF DECEMBER, 2023. .........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Njeru for the State, Mr. J.K. Koech holding brief for Ms. Kosgei for the Accused and Siele (Court Assistant)