[2023] KEHC 26302 (KLR)

Republic v Mutai (Criminal Case E028 of 2022) [2023] KEHC 26302 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26302 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E028 of 2022

RL Korir, J

December 7, 2023

Between

Republic

Prosecution

and

Nickson Kipkurui Mutai

Accused

Judgment

1. Nickson Kipkurui Mutai (Accused) was charged with the offence of murder Contrary to section 203 as read with section 204 of the Penal Codecap 63 laws of Kenya. The particulars of offence were that on the 9th November, 2022 at 10. 30a.m. at Kabisoge village in Bomet Central Sub County within Bomet County the accused murdered Winny Chelangat.

2. At the time of plea, the learned prosecution counsel informed the court that the Accused had indicated his wish to plea bargain. The matter was set for pre-trial direction on 23rd March, 2023. On that date defence counsel sought time to engage with the prosecution on the plea agreement. The trial was subsequently deferred to enable the parties conclude their plea negotiations.

3. A Plea Agreement was filed in court on 23rd October, 2023 for the court’s consideration. On 24th October, 2023 the Court accepted the Plea Agreement after satisfying itself that the Accused had not only appreciated and understood the legal basis and process of plea bargaining but that he had voluntarily executed the Plea Agreement.

4. The Accused subsequently took plea on the substituted charge and pleaded guilty and a plea of guilty was entered. The Prosecution Counsel read the facts as follows: -“The deceased Winnie Chelangat and the accused Nickson Kipkurui Mutai were long time lovers and carried themselves as man and wife. On the material day the two were making merry in the house of the deceased while her children were in school. As they were inside the house a love related quarrel arose which degenerated into a fierce fight. A neighbour heard the deceased scream, saw the accused running away from the house and raised an alarm which attracted members of the public who rushed to the scene. They found the house locked from the outside and forcibly opened it only to be confronted with the bleeding body of the deceased. The villagers organized a hot pursuit of the accused who was still on his heels and arrested him. He was beaten silly but was luckily saved by the police who responded swiftly to the cries. He was arrested.The deceased who had several cuts on her body was evacuated to hospital where she was confirmed dead on arrival. Her cause of death was established to be from multiple deep cuts. The accused was charged with murder but has offered to plead guilty to manslaughter which is acceptable to the prosecution. We agree that;i.The accused and the deceased were loversii.On the material date they had a mortal fight over their loveiii.The accused killed the deceased in passion.We therefore urge the court to accept the agreement.”

5. The accused confirmed the facts as true and the Court consequently confirmed the guilty plea and convicted him of the offence of manslaughter contrary to section 202 as read with section 204 of the Penal Code. The Court directed the filing of a presentence probation report and set the case for sentencing hearing.

6. At the sentencing hearing on 16th November, 2023, learned defence counsel Mr. Koske mitigated on behalf of the Accused. He submitted that the Accused was 33 years old and was married with 3 children. That the Accused and the deceased were long term lovers and lived as husband and wife. That their relationship was characterized with quarrels over suspected infidelity. Counsel submitted that the Accused had no intention to murder his long term lover and was remorseful for the killing. Counsel further stated that the family of the Accused and deceased had reconciled. That the Accused had reflected upon his life and was now reformed. Counsel prayed for a non-custodial sentence to enable the Accused rejoin his family and provide for his young children.

7. On his part the learned Prosecution counsel Mr. Njeru submitted that the Accused was a 1st offender and the pre-sentence report was favorable to him. He deferred to the court’s discretion in sentencing.

8. Sentencing is a critical part of the trial process. In Thomas Mwambu Wenyi v Republic (2017) eKLR the Court of appeal cited the decision of the Supreme Court of India in Alister Anthony Pereira v State of Mahareshtra at paragraph 70-71 where it held: -“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

9. Some of the factors to be considered in determining an appropriate sentence were outlined in the famous Supreme Court case of Francis Karioko Muruatetu & Another v Republic[2017] eKLR (SC Petition No. 15 &16 of 2015) to include: -(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.”

10. I have considered the probation officer’s report. It details how the accused led a double life where he was officially married to one wife who was settled in his home while he ran a parallel family with the deceased unknown to the family at home. That when the relationship with the deceased deteriorated he was asked to leave the home which was the property of the deceased’s father and it was then that he committed the offence stabbing the deceased several times. The report states that the accused’s family were willing to have him back home and to further reconciliation with the deceased’s family.

11. With respect to the victim impact statement, the report stated that the deceased’s family was still devastated and angry at the brutal killing of their loved one. They seek justice from the court.

12. I have considered the accused’s mitigation and the victim impact statement. No doubt the accused was remorseful. It was however clear that he had committed a heinous crime by severally stabling the deceased with whom he had been cohabiting. It was not clear why. What was clear was that this offence was fatal gender based violence which must be discouraged through a deterrent sentence.

13. I have given due consideration to the fact that the accused plea bargained and saved the court precious judicial time. The record shows that he was willing to plea bargain right from the date of plea. This should earn him leniency in sentencing. He is spared a long prison sentence.

14. I have taken into consideration that the Accused has been in Pre-trial custody since 15th November, 2022 when he was charged.

15. The Accused is sentenced to serve 9 years’ imprisonment from today.

16. The Accused having entered a Plea Agreement has a right of appeal against sentence only.

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 Mr. Koske for the Accused and Siele (Court Assistant)