[2023] KEHC 25394 (KLR)

Republic v Ngeno (Criminal Case 13 of 2015) [2023] KEHC 25394 (KLR) (16 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25394 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 13 of 2015

JK Sergon, J

November 16, 2023

Between

Republic

Prosecutor

and

Geoffrey Kipkoech Ngeno

Accused

Sentence

1. Geoffrey Kipkoech Ngeno 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 20th June, 2015 at Kapkures Village in Chemamul Location within Kericho County, the Accused unlawfully killed Daniel Kipkemoi Ngeno.

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 Koech Learned Counsel for the Accused, submitted that the Accused readily pleaded guilty to the lesser charge of manslaughter. The accused is remorseful and regrets the commission of the offence which led to the demise of his brother. She further submitted that the accused is aged 36 years, he had a family but his wife deserted the matrimonial home with their son Brian Kipchumba now aged 10 years and that there was no likelihood of him reuniting with his wife. The accused was arrested on 20th June, 2015, however, the accused raised the bond terms on 5th November, 2018 he therefore spent three (3) years and five (5) months in custody and had taken the opportunity to reflect on his life and further that since his release he has been a law abiding citizen. The Learned Counsel noted that the pre-sentence report was unfavourable on account that the accused does not have an amicable relationship with family members, the Learned Counsel faulted the said family members for not embracing the accused person and hence it had been difficult to conduct the traditional cleansing rituals and reconciliation rites. She finally urged the court to exercise leniency and give the offender a non-custodial sentence.

4. Mr. Musyoki Learned Assistant Director of Public Prosecutions submitted that the accused assaulted his brother using a jembe and the brother sustained fatal injuries leading to his demise and that in the circumstances 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 ekes his living as a casual labourer. It is noted that sold his share of ancestral land and further that after having sold his share of ancestral land started agitating for the family land to be subdivided afresh with an aim to gain an additional share. The offender faulted his brothers for refuting to heed to the fresh subdivision citing the fact that the two point piece of land allocated by their father to his mother was too small. He used this excuse to collude with the mother to create dissonance to a once peaceful family.

6. On the material day, both the accused and the deceased were under the influence of alcohol, they had a misunderstanding, the accused assaulted the deceased using a jembe and he died instantly. The offender fled, however, he was subsequently arrested and charged with the instant offence.

7. The accused person attributed his actions to the fact that his brothers had failed to heed to his demand for the fresh sub division of the family land. He beseeched this court to exercise leniency.

8. The family of the offender and family of the deceased, the deceased happens to be the deceased's elder brother, the family urged the court to dispense justice on behalf of the deceased considering the subsisting family land dispute where the offender sold his portion and wished to be reallocated with an additional portion at whatever cost, the family was also concerned with the plight of the deceased person's family, the wife and young school going children, the family fully depended on the deceased, he was the sole breadwinner, the wife was therefore struggling to meet the basic needs for the family. The family also highlighted the fact that the wife and children of the deceased are living in fear and are stigmatized with the presence of the offender within their vicinity. The deceased's family urged the court to uphold the interests of justice and issue the offender with a deterrent sentence.

9. The local administration in particular the Assistant Chief Mr. Ruto and village elder John Chepkwony identified the offender as a member in their area of jurisdiction, they knew him as a troublesome fellow who refused to embrace peace with his siblings, they were aware of the fact that the offender had sold his own parcel of land and demanded another portion from his siblings. The actions of the offender had attracted the attention of the local administration, who tried to resolve the issue but all their efforts were in vain. They therefore proposed a severe sentence to deter such irresponsible behaviour in the community.

10. The county probation officer noted the above sentiments and further that the family of the offender and deceased were opposed to a non-custodial sentence, the local administration had tried to reconcile the offender with his family but he had refuted to heed, and further cited him as being a source of conflict in the family culminating in the instant offence. The local administration were opposed to a non-custodial sentence in order to stop the offender from interfering with his siblings and committing similar offences, they in fact proposed a severe sentence to deter other members of the community with wretched and/or insidious interests.

11. The county probation officer while taking cognizance of the findings of the social inquiry and the fact that the offender was not remorseful, was not ready to relinquish his claim on the family land and did not have solid plans on how to live with his siblings harmoniously recommended that the court exercise its discretion in the matter, however, he proposed a deterrent sentence in accordance with the sanctions prescribed in the penal code for the instant offence.

12. 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.

13. I have considered that the accused was arrested on 21st June, 2015, arraigned in court and remanded in custody and had been in custody for a period of three (3) years, five (5) months before being released on bond on 5th November, 2018.

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

15. Consequently, I hereby sentence the Accused namely: Geoffrey Kipkoech Ngeno to serve 8 years imprisonment.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 16TH DAY OF NOVEMBER 2023J. K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – Mr. MusyokiConvict – Present in PersonNyadimo holding brief for Miss Koech for the Accused.