[2017] KEHC 1291 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO. 17 OF 2016

REPUBLIC……………………………………...PROSECUTOR

VERSUS

MELITA OLE KAIPON………….……………………ACCUSED

SENTENCING REMARKS AND VERDICT

The accused in this case was tried and convicted of the offence of murder contrary to section 203 of the Penal Code. The accused according to the pre-sentence report is aged 31 years, married and blessed with two children aged 5 and 1 year respectively. The report went further to state that the accused was involved in farming activities as a source of livelihood to support his family.

To the family and the community the death of the deceased who was also the father to the accused was both a tragedy and great loss of significance to society. As the report clearly captures the anguish of the family and the community to these awful events have left them devastated but to condemn you outright. They urged this court to take into account their concerns on the ruthless manner the deceased met his death in the hands of the accused. Those sentiments ended up with a request that no mercy or forgiveness should be extended to you while exercising discretion in sentencing.

It is clear from the submissions by Mr. Akula, the senior prosecution counsel that you have no previous record on any criminal activity. Learned prosecution counsel however urged this court to consider the seriousness of the offence and the circumstances it was committed.

Mr. Ochieng on behalf of your counsel Mr. Chege submitted on your behalf highlighting mitigating factors to persuade this court to be lenient in passing a non-custodial sentence. According to Mr. Ochieng you are at your prime age of 31 years with a young family looking up to you for support and care. He further submitted that you regret the offence and ready to seek forgiveness from your family.

I have also had the advantage of listening and reading the impact statement of your mother – Christine Kaipon. In her statement she stated before this court the psychotraumatic effect which the cruel murder has had on her and the family. As your mother might put it this loss will be with them for the rest of their lives in view that you inflicted harm without any justification. In her own words the loss caused by your unlawful action is unreasonable which they are not ready to forget and forgive.

I have carefully weighed the charges, the evidence and submissions made at this stage of sentencing. The alternative sentence for the offence of manslaughter contrary to section 202 of the Penal Code is provided for under section 205 to be that of life imprisonment. As to the length of sentence to be served the legislature left it to the discretion of the courts depending on the peculiar circumstances of each case.

In deciding the appropriate sentence I would be guided by the sentencing policy and guidelines. It is also necessary to consider the following matters:

- Mitigation, the victim impact statement, and also aggravating factors.

On aggravating factors I take into account the fact as deduced from the evidence you killed your father, without any excuse justification. There was no evidence of any mental disorder or combative stress. There is no evidence that you were under any imminent danger of attack from the deceased to warrant you retaliate with such a lethal force. Your mother was present when your father, deceased herein asked you to go back to your house as you settle the differences with your wife the following day. That was never to be as you used the sword in your possession to inflict harm targeting vulnerable parts of the body like the head and chest.

In the opinion of the doctor the deceased cause of death was this stab wound to the chest due to hemorrhage. There can be no doubt that the way you acted was deliberate with full knowledge that it will cause harm or death. The fact that you used a lethal weapon to the deceased who was unarmed to me constitutes an aggravating factor. Throughout the trial you pursued a defence of denial while knowingly very well this offence occurred within the family setup. That was an entirely unrealistic approach which undermined any trust or forgiveness that the family should have considered to allow you back so as to reform within that known environment. The offence of manslaughter remains a very serious offence which attracts a maximum sentence of life imprisonment.

I have carefully weighed the aggravating factors and some of the mitigation offered by Mr. Ochieng on your own behalf. I also recall that by reducing this offence from that of murder to manslaughter, an element of malice aforethought is not a factor. In my judgement the mitigation carries little weight given the nature, character and circumstances this killing was committed by you.

All these adds to the cruelty and infliction of the fatal injuries that would have been avoided at all cost. There is gross breach of trust on your part as a son to the deceased. You would be the last person the deceased could have expected such a fatal attack which deprived the entire family/sibling of a father, provider, care giver and companion. The security and safety of your life cannot be guaranteed at the family and the community at large. The sentiments by your mother and local members of the community cannot be taken for granted. There is no proper mechanism for victim-offender mediation to take place within our criminal justice system. This court has taken into account the period you have been in custody. It contributes in discussing the trial order I make on this issue on sentence.

I am satisfied that weighing one factor after another I sentence you to a term imprisonment of 40 years. 14 days right of appeal explained.

Dated, delivered and signed in open court at Kajiado this 18th day of September, 2017.

………………

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Chege for accused

Mr. Akula for Director of Public Prosecution

Mr. Mateli Court Assistant

Accused