[2023] KEHC 27014 (KLR)

Republic v Mutai alias Robert Kipngetich Mutai (Criminal Case 053 of 2021) [2023] KEHC 27014 (KLR) (13 December 2023) (Sentence)

Neutral citation: [2023] KEHC 27014 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 053 of 2021

JK Sergon, J

December 13, 2023

Between

Republic

Prosecution

and

Wesly Cheruiyot Mutai alias Robert Kipngetich Mutai

Accused

Sentence

1. Wesley Cheruiyot Mutai alias Robert Kipngetich Mutai the Accused herein, pursuant to a plea agreement was charged and convicted with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code cap 63 Laws of Kenya. The particulars of the offence are that on the 22nd August, 2021 at Seretut in Belgut Sub-County within Kericho County, the Accused unlawfully killed Sarah Chelangat Sang.

2. Upon convicting the accused for the aforesaid offence, this court directed the county probation officer to file a pre-sentence report and also invited the accused to make submissions in mitigation to guide the court in determining the appropriate sentence to be meted out.

3. Miss Kitur who was holding brief for Mr. Kipkoech Yegon the Learned Counsel for the accused submitted in mitigation, she stated that the accused is remorseful and regrets the commission of the offence. She submitted that the accused was intoxicated at the time of commission of the offence. She further stated that the accused was a first offender and further that he had reached out to the family of the deceased seeking forgiveness. She further submitted that the accused has been in custody for the last two (2) years. She finally urged the court to exercise leniency and give the offender a non-custodial sentence.

4. Mr. Musyoki the Learned Assistant Director of Public Prosecutions submitted that the accused had committed a grave offence which led to the demise of his mother. The accused had on a previous occasion issued threats against his mother and siblings. On the material day he stabbed his mother on the chest and left her for dead, left and came back the next day to confirm her death. The Learned Assistant Director of Public Prosecutions was adamant that the circumstances under which the offence was committed warranted a severe sentence and therefore a custodial sentence was appropriate.

5. This court also called for a pre-sentence report. I have considered the pre-sentencing report prepared and filed by the Kericho County – Probation Officer. In the aforesaid report it is noted that the accused practices small scale farming. He has cultivated tea leaves on half an acre of the family land. The offender is a hard working person and he relates well with community members.

6. The offender narrated how on the material day, he and the elder brother (Richard Mutai) had a misunderstanding on a land dispute which generated into a quarrel culminating to a fight. The fight happened in the presence of their mother. The offender maintained that he left and he went to sleep in his house only to be arrested the following day implicated to have caused the death of their mother Sarah Chelangat Sang.

7. The offender admitted that he had a fight with his elder brother who attacked him on a misunderstanding over a land issue. The offender said that he had no premeditated mind to cause the death of his mother. He was drunk when the elder brother and his children attacked him with severe beatings in the presence of their mother. He recalled having left the mother, his brother Richard and his family members at the mother’s compound when he left for his house.

8. The deceased was the mother to the offender. She would try to intervene whenever Richard Mutai fought with the offender. The siblings have an acrimonious relationship with the offender. The family of the deceased/victim are of the opinion that the offender should serve a life sentence.

9. The community members know the offender and his family members. They described the offender as a hardworking person, humble and hated by his family members. The neighbours and villagers narrated how the offender underwent fierce mistreatment from the siblings. Despite several tries and the intervention from the local administration to resolve the land issue and unite the family, the siblings never relinquished their hatred towards the offender. The community maintains that the offender could have been framed into having committed the offence since from their assessment the deceased passed away in the evening when they fought the offender but the incident was reported in the morning.

10. The community members described the offender as a victim of circumstances and said that the home environment is safe for him to be placed on non-custodial sentence. Through the local administration, they will assist the offender to get justice and resolve the land issue amicably.

11. The community members are willing and ready to work with the local administration in finding a lasting solution and forge the way how the offender will re-integrate in the community whenever he is released from court.

12. The offender is not married but he has a fixed abode. The offender was remorseful on how he got implicated in the offence of killing his mother. The offender is willing and ready to use the local administration and community members to help him resolve the land issue at home. The offender prays for a non-custodial sentence. He is ready to adhere to the non-custodial sentence provisions effectively.

13. The county probation officer noted the above sentiments and while taking cognizance of the findings of the social inquiry deemed the offender suitable for a non custodial sentence and proposed a probation order sentence for two (2) years. The county probation officer stated that during the supervisory visits, the probation office will assist the offender re-integrate into the community; counsel him on anger management and social control skills.

14. I have taken cognizance of the fact that the accused entered into a plea bargaining agreement and therefore saved the court's time for trial.

15. I have considered that the accused was arrested and arraigned in court on 23rd August, 2021 and remanded in custody and has been in custody for a period of two (2) years and three (3) months.

16. Having considered the circumstances of the offence, submissions in mitigation and having further considered the pre-sentence report which is favourable, it is apparent that in the circumstances of this case that a non-custodial sentence is appropriate.

17. Consequently, I hereby sentence the Accused namely: Wesley Cheruiyot Mutai alias Robert Kipngetich Mutai to serve 3 years on Probation under the Supervision of Kericho County Probation Officer.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER 2023. …………….J. K. SERGONJUDGE