[2023] KEHC 26665 (KLR)

Republic v Ngetich (Criminal Case 38 of 2016) [2023] KEHC 26665 (KLR) (13 December 2023) (Sentence)

Neutral citation: [2023] KEHC 26665 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 38 of 2016

JK Sergon, J

December 13, 2023

Between

Republic

Prosecutor

and

Allan Kiplangat Ngetich

Accused

Sentence

1. Allan Kiplangat Ngetich the Accused herein, was charged and convicted for the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that on 22nd day of July, 2016 at Chepsir Village in Londiani Sub-County, Kericho County, the Accused murdered Brian Kibet.

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. Mr. Ngetich Learned Counsel for the Accused, informed this court on the material day when the accused person committed the offence, he was fifteen (15) years old, he was essentially a minor and was attending Kipchimchim Secondary School at the time. He stated that the accused assists his mother with farming which is the only source of their livelihood. He stated that the accused is yet to come to terms with the events culminating in the death of the deceased on the material day. He further submitted in mitigation that the accused is a first offender, was remorseful and was therefore seeking leniency and a non-custodial sentence.

4. Mr. Musyoki Learned Assistant Director of Public Prosecutions submitted that the accused was undeserving of the court's leniency, he threw a defenseless child of tender years into a pit latrine. He therefore proposed a custodial sentence.

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 offender completed secondary school education in 2019, however, he could not proceed to college due to financial constraints and was at home assisting the mother in operating her kiosk and subsistence farming. The offender recently married one Faith Cherotich and together they have one child. He is the primary breadwinner of the household. The offender enjoys a quality relationship with his family and the community. He has a fixed abode and while on bond did not encounter any hostility from the community.

6. The offender admitted to having acted irrationally against the demands of the deceased’s mother on the fateful day. He stated they had a fleeting romance before the deceased’s mother left for an unknown place, after about one year she had resurfaced claiming that the offender was the father to the deceased who was about two months at the time, upon her return, the two had a quarrel on the paternity of the child which culminated into the commission of the offence on the material day. The offender regrets the offence and was remorseful.

7. The family of the offender regretted the circumstances under which the offender cut short the life of the deceased, they sought forgiveness from the deceased’s relatives and acknowledged that the two were juveniles and have since grown to be responsible individuals in the community, the mother to the deceased had remarried in a locality not far from the offender’s home and cut off communication.

8. The family of the deceased welcomed reconciliation and offered their forgiveness to the offender.

9. The offender enjoys strong ties in the community and is described as a humble and industrious person and is not associated with petty crime in the community. The local administration stated that while on bond he was not associated with violent and questionable behavior. They also stated that he was married and enjoys a quality relationship with his family. They therefore were not opposed to a non-custodial sentence and were willing to continue supporting him while he continues to enjoy the existing quality relationship with his young family.

10. Following the social inquiry and the assessment, the probation officer, noted that his family was willing and ready to support him in reforming while he continues to respect the lawful authority, the family had reconciled with the deceased’s mother and relatives and therefore urged the court to place him on a non-custodial sentence to allow him to take care of his young family which may face difficulties in case he is sentenced to custody. The probation officer noted that the offender had plans to join a tertiary institution and that he was willing and ready to abide by the non-custodial sentence requirements and found him suitable to be placed on probation order for a period of two (2) years subject to the court’s discretion.

11. I have considered that the accused was arrested and arraigned in court on 25th November, 2016 and had been in custody for a period of three (3) months before being released on bond on 28th February, 2017.

12. Having considered the circumstances of the offence, submissions in mitigation and having further considered the contents of the pre-sentence report which is favorable, it is apparent that in the circumstances of this case that a non-custodial sentence is appropriate. I am therefore inclined to adopt the recommendation of the probation officer.

13. Consequently, I hereby sentence the Accused namely: Allan Kiplangat Ngetich 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