[2023] KEHC 26911 (KLR)

Republic v Langat (Criminal Case E012 of 2021) [2023] KEHC 26911 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26911 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E012 of 2021

RL Korir, J

December 15, 2023

Between

Republic

Prosecution

and

Mathew Kiprotich Langat

Accused

Judgment

1. Mathew Kiprotich 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 are that on 25th June 2021 at Kimugul village in Taboino Sub-Location Cheptalal Location in Konoin Sub – County, within Bomet County, murdered Ibrahim Kimutai Koech.

2. When arraigned on 15th July, 2021, the Accused pleaded not guilty and the case was set for pre-trial. Subsequently, parties elected to plea bargain.

3. A Plea Agreement was filed on 25th October, 2023. The court accepted the Agreement after satisfying itself that the Accused executed the same voluntarily.

4. The Accused pleaded guilty to the charge of manslaughter. The facts as read by the Prosecutor as follows: -“The brief facts surrounding this case is that on the 12th day of June, 2021 at around 1830hrs in Kimugul village of Taboino sub –location of Cheptalal location at the homestead of one Wesley Kirui the suspect in this case was patronizing on traditional liquor together with the deceased person and others.Thereafter the suspect and Victor Cheruiyot picked a fight with the deceased person where they were separated and each stood on their own. After a short while the suspect picked a wooden stick and hit the deceased person once on the head where the victim fell down and became unconscious. The assailant then ran away. The victim was then rushed to Cheptalal Sub-County hospital then Kapkatet sub-county then to Moi Teaching and Referral Hospital on referral for further treatment and management where he was admitted in the ICU Ward.On 25th of June, 2021, the victim succumbed to the injuries while still under treatment at the same Moi Teaching and Referral Hospital Eldoret.On the same 25th June, 2021 a report was made at Cheptalal Police Station Vide OB No. 18/25/6/2021 and the investigation commenced.On 27th of June, 2021 two suspects were arrested in connection with the incident.On the 7th July, 2021 a post-mortem examination of the body of the deceased was done where the cause of the death was established to be severe head injury due to assault.A police case file was opened and after the investigation one Mathew Kiprotich Langat was to be blamed for the death of the late Ibrahim Kimutai Koech this to be charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.”

5. The Accused confirmed the facts as true and was convicted on his own guilty plea. The court directed the filing of a pre-sentence report and scheduled a sentencing hearing. Defence counsel opto to file submissions in mitigation.

6. At the sentencing hearing on 15th November, 2023 defence counsel relied on their written submissions. The accused addressed the court and asked for a non-custodial sentence. He stated that he was now transformed and had a family which was suffering as a result of his incarceration.

7. The Prosecution submitted that the Accused was a 1st offender and had Plea Bargained. They however asked for a custodial sentence. They drew the attention of the court to the Victim Impact Statement stating that the deceased left behind a wife and children who were now suffering.

8. Sentencing serves multiple purposes as set out in the Judicial Sentencing Policy Guidelines 2023 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.

9. In Jacob Kirimu Kabiru v Republic (2010) eKLR, the Court of Appeal held that: -“We believe that the restricted right of appeal where a bargain has been struck is to assist in speeding up the process and to attain finality at the earliest time possible. However, we note that the superior court even after realizing that the plea was based on a plea bargaining agreement did not consider the mandatory provisions of section 137 I (2) of the Criminal Procedure Code and in particular, the need to take into account a victim impact statement. In our view, such a victim impact statement would have been necessary....”

10. I have considered the Accused’s written mitigation filed on 25th October, 2023. It was submitted that the commission of the offence was not pre-meditated and that the Accused was remorseful that the Accused was a first offender and deserved a lenient sentence. That he was willing to undertake reconciliation with the victims and repair the harm caused if granted a non-custodial sentence. Counsel urged the court to consider the circumstances of the offence and also that the Accused had been in custody since 27th June, 2021.

11. I have considered the circumstances of the offence. The Accused, the deceased and others were in drinking in the home of one Wesley Kirui when they started a random fight. The Accused and one Victor Cheruiyot fought with the deceased. They were separated but after a short while the Accused armed himself with a wooden stick and hit the deceased on the head and ran away. The deceased was rushed to hospital but later passed on while undergoing treatment.

12. It was not clear what prompted the fight or why the Accused viciously hit the deceased after being separated. What is clear to the court is that they were drinking illicit brew in the homestead of one Wesley Kirui. It is safe for the court to conclude that they were drunk and may not have had clear reasoning capacity.

13. I have considered the Probation Officer’s report that both the Accused and deceased were neighbours and that their respective families were taking steps towards forgiveness and reconciliation which they were yet to conclude. This is a mitigating factor.

14. Sentence must be commensurate with the gravity of the offence. In this case, there was no reasonable explanation for the killing of the deceased what stands out is the alcoholism which must be discouraged. In the mind of the court, the Accused would benefit from a rehabilitative custodial sentence which will leave room for reconciliation and reintegration thereafter. This Court holds the view that reconciliation and criminal sanctions ought to work in tandem. In Republic v. Priscilla Cherono Chebet & 2 others, Nairobi Criminal Case No. 65 of 2011(- eKLR) the court stated:-“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.”

15. The Accused has been in custody for 2 years which I have considered. The Accused is sentenced to serve 7 years’ imprisonment from today.Orders accordingly

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 15TH DAY OF DECEMBER, 2023. ..........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Njeru for the State, Mr. Marebu for the Accused and Siele (Court Assistant)