[2023] KEHC 23718 (KLR)

Republic v Ngeno (Criminal Case E009 of 2023) [2023] KEHC 23718 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23718 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E009 of 2023

HM Nyaga, J

October 19, 2023

Between

Republic

Prosecution

and

Amos Kiprotich Ngeno

Accused

Ruling

1. The accused was initially charged with murder contrary to Section 203 as read with 204 of the Penal Code. The particulars were that on 31st January,2023 at Lelechwet Village of Teret Location in Njoro Sub-County within Nakuru County he murdered Ezekiel Kingeno Kesir.

2. When accused was arraigned in court on 16th February, 2023 he pleaded not guilty to the charge. Subsequently, on 27th April, 2023 the defence sought to engage in a plea bargaining agreement, to which the prosecution consented. Thereafter, the parties entered into a plea bargaining agreement pursuant to the provisions of Section 137A to 137E of the Criminal Procedure Code(CPC), duly signed by the prosecution and the accused on 12th May, 2023 and 13th June,2023 respectively.

3. The examined the accused in accordance with Section 137F of the Criminal Procedure Codeand established that the plea bargain was unequivocal and was entered into voluntarily, as provided for under section 137G. It then accepted the plea agreement.

4. Thereafter the charges were reduced to Manslaughter, contrary to section 202 as read with section 205 of the Penal Code. The elements of the charge were then read out to the accused who pleaded guilty and subsequently admitted the facts as set out in the plea bargain agreement. He was then convicted on his own plea of guilty.

5. The post mortem report, exhibit memo form, certificate of photographic prints and photographs were produced as exhibits No.1,2 (a), 2(b), and 2(c) respectively.

6. In her sentencing submissions, the state counsel informed court that the accused was a first time offender and recommended that he be sentenced to 15 years’ imprisonment. Her argument was that the accused overpowered the deceased and delivered a fatal blow, yet he was not in any danger considering that he had already seized the stick from the deceased.

7. The defence counsel, Mr. Orege, in his submissions and mitigation stated that the accused is remorseful as he had a cordial relationship with the deceased, who was his father. He stated that one Andrew had previously bought land and cows from the deceased and that the former he used to buy alcohol for the deceased in order to influence him. He contended that the accused was trying to protect his father from exploitation and when the deceased hit him, it was unexpected and thus he was acting in the heat of the moment when he hit back at the deceased.

8. Counsel further submitted that the accused is 26 years old and has been in custody since February 2023 and that he has learnt his lesson. He prayed that the accused be admitted on non-custodial sentence or a maximum sentence of 3 months in the event this court deems it necessary to impose a custodial sentence.

9. I ordered for a presentence report of the accused and the same was duly filed on 28th September,2023.

10. According to the said report, the accused is a fifth born among nine children and has no criminal records. It is stated that the accused disagreed with the victim, who was his father over the sale of a family cow whereupon the deceased, as had been previously the case, squandered the cash on illicit brews consumption. The disagreement infuriated the deceased who attacked the accused using a piece of timber and in the heat of the moment, the accused overpowered him and used the same object to assault the deceased, leading to his death.

11. The report further states that the accused pleads for leniency on grounds that he did not have intention to cause such harm. That the accused’s family has embraced traditional reconciliation mechanisms and they hope to avoid double tragedy in the family of losing the deceased to death and the accused to the prison system.

12. The report further indicates that the accused, 26, is married with young family and that he needs supervision to reduce reoffending, assist him integrate back into the society and seek complete reconciliation within the family. The Probation officer recommends that the accused to be placed on probation for a maximum period of 3 years.

Determination 13. The only issue for determination is what would constitute an adequate, appropriate and just sentence in the circumstances of this case?

14. The Supreme Court in Francis Karioko Muruatetu & Another vs Republic, Petition No. 15 of 2015, as a guide in sentencing held that:“(71)…the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:a.age of the offenderb.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.

15. The Supreme Court in Muruatetu Case (supra) appreciated that:“In Kenya, many courts have highlighted the principles of sentencing. One such case is the High Court criminal appeal decision in Dahir Hussein v. Republic Criminal Appeal No. 1 of 2015; [2015] eKLR, where the High Court held that the objectives include: “deterrence, rehabilitation, accountability for one’s actions, society protection, retribution and denouncing the conduct by the offender on the harm done to the victim.” The 2016 Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of sentencing at page 15, paragraph 4. 1 as follows:“Sentences are imposed to meet the following objectives:1. Retribution: To punish the offender for his/her criminal conduct in a just manner.2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.5. Community protection: To protect the community by incapacitating the offender.6. Denunciation: To communicate the community’s condemnation of the criminal conduct.”

16. I have considered the facts of the case, the submissions by the State Counsel and the mitigation by the defence counsel.

17. According to the facts of the case, the deceased was the convict’s biological father. On 31st January,2023 the deceased sold a cow to one Andrew Chepkwony alias Mrefu. The accused was not happy with the sale and accused the buyer for luring his father to sell animals to him without consulting the family. The accused then approached the deceased and the buyer to try and prevent the latter from driving away the sold cow. The deceased, who had a wooden stick in his hands started assaulting the accused. The buyer ran away. The accused overpowered the deceased, took away the wooden stick and hit the deceased, leaving him with fatal injuries. The daughter of the deceased who witnessed the fight started screaming and alerted the neighbours who responded but it was too late since the deceased had already died. The accused after seeing his father dead he ran away. The incident was reported to Njoro Police Station and the police visited the scene and moved the body to Egerton University Mortuary. The accused surrendered himself at Njoro Police Station and he was placed in custody. On 6th February,2023, a post mortem was conducted on the body of the deceased and it revealed that the deceased died as a result of severe head injury from penetrating temporal head trauma.

18. In terms of section 202 as read with section 205 of the Penal Code, the accused upon being convicted is liable to serve life imprisonment. However, this represents the maximum sentence which is usually reserved for the most aggravated of such cases. I do not consider this to be a case falling in the said category.

19. The discretion in sentencing rests with the trial judge because he or she has the knowledge of the relevant facts before him or her and in many instances, has observed the accused and witnesses’ demeanour. The discretion must however be exercised judiciously. In the persuasive Nigerian case of African Continents Bank vs Nuamani [1991] NWLI (parti86)486, it was observed that,“The exercise of court’s discretion is said to be judicial if the judge invokes the power in his capacity as a judge qua law. An exercise of discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes, discretionary power is said to be judicious if it arises or conveys the intellectual wisdom or prudent intellectual capacity of the judge. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.”

20. The mitigating factors that I have taken into consideration are, first, that the accused readily pleaded guilty and thus saved the court on judicial time. Secondly, the facts narrated by the state counsel reveal that the killing was not premeditated and arose from a disagreement over sale of the cow which the accused did not approve of, as he felt the buyer had duped the deceased to sell the same without consulting the family. Thirdly, the accused has also expressed his remorse and lastly, he was found to have no previous record, hence deemed to be a first offender.

21. It is well settled law that a sentence must reflect the accused’s blameworthiness for the offence. See Omuse v. R (2009) KLR 214, where it was held that the sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that the proper exercise of discretion in sentencing requires the Court to consider that fact and circumstances of the case in their entirety before settling for any given sentence.

22. In this case, it was the deceased who provoked the fight by assaulting the accused with a wooden stick. The accused appears to have acted in the heat of the moment when he inflicted fatal injuries to the deceased. Had the deceased not hit the accused, who knows, he could be alive today. The death might not have been intended but it can be argued that had the accused controlled his anger, his father would be alive today. A life was lost and this calls for an appropriate sentence.

23. In the case of Republic vs Daniel Okello Rapuch [2017] eKLR, a sentence of 12 months’ imprisonment was meted out to a man who killed another on the allegation of being involved in an illicit love affair with his girlfriend.

24. In Republic vs Collet Thabitha Wafula [2016] eKLR a sentence of three (3) years non-custodial sentence was meted out to a woman who killed her husband on the allegation of false accusation of unfaithfulness. The court took into account that the fight was provoked by the deceased and the accused was acting in self-defence.

25. Looking at the circumstances, I note that the accused has been in custody for a period of about 8 months. Although the presentence report recommends a non -custodial sentence it is not binding on the court. However, the report has convinced me that retribution is not ideal in this case.

26. The court has to balance between the need to have the accused atone for his actions and the need to exercise leniency, given the circumstances of the case. In this regard I think that the sentenced proposed by the State is very punitive and inappropriate.

27. After considering all the circumstances, I order that the accused serves two (2) years imprisonment. This will give him time to reflect on what he did and prepare to reconcile with his family.

28. Under Section 333(2) of the Criminal Procedure Code, the accused’s sentence will commence on 16th February, 2023, when he was first remanded into lawful custody.

29. Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 19TH DAY OF OCTOBER, 2023. H. M. NYAGAJUDGEIn the presence ofMs Murunga for stateMs Mungai for Orege for accused