[2022] KEHC 16187 (KLR)

Republic v Nguru & another (Criminal Case 52 of 2013) [2022] KEHC 16187 (KLR) (Crim) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16187 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 52 of 2013

RL Korir, J

December 8, 2022

Between

Republic

State

and

Daniel Gacuku Nguru

1st Accused

Edward Barngetuny Koech

2nd Accused

Ruling

1. Daniel Gacuku Nguru (1st accused) and Edward Barngetuny (2nd accused) were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that on August 2, 2012 at Umoja Estate near Egesa Bar within Nairobi County jointly murdered Jackson Kiprop.

2. Both the 1st and 2nd accused were police officers stationed at Dandora Police Station. The deceased PC Jackson Kipkoech was also a police officer stationed at Buru Buru Police Station and was by a twist of fate felled by a police bullet.

3. At the conclusion of the trial, both accused were convicted of the lesser offence of manslaughter. The court subsequently held a sentence hearing in which it recorded the mitigation of the parties.

4. Mr Kibe Mungai learned counsel for the accused submitted that the accused were shocked by the death of their fellow police officer were remorseful and continued being remorseful, even after their conviction. Counsel urged the court to consider the circumstances of the offence and the fact that the accused’s error of judgment caused the death of the deceased.

5. Secondly, counsel asked the court to consider the personal circumstances of the accused. He submitted that the 1st accused was 58 years old and had served in the police service for 30 years while the 2nd accused was 47 years and had served for 17 years and both had a clean record. That the 1st accused had blood pressure and was on medication. For the 2nd accused counsel stated that the 2nd accused was hypertensive and needed special diet. That he had 6 children aged between 2 and 15 years who were in school.

6. Counsel further urged the court to consider the fact that the accused might face danger if incarcarated alongside inmates who may have landed in jail as a result of the police duties undertaken by the accused. Rooting for a non-custodial sentence, counsel urged the court to consider the moral blameworthiness of the offenders who believed that they were serving the public when their error of judgment occurred. He urged the court to also consider that the accused were previously in remand custody for a year before being released on bond and had carried a long period of suffering and remorse during the pendency of the trial. Further, counsel submitted that the 1st accused would be retiring this year and his conviction would automatically extinguish his pension while the 2nd accused would also automatically lose his job after 17 years of service. Counsel asked the court to consider these personal circumstances and grant the accused a non-custodial sentence. To support his submissions counsel cited the following authorities: Republic v Juliana Wanza Mulei(2017) eKLR;Republic v James Kimosop (2017) eKLR, and ; Republic v Justo Mwamba M Irandu(2021) eKLR.

7. The 1st accused addressed the court directly and stated that he was sorry that he gunned down his fellow police officer. He asked the court to consider that he was managing a serious medical condition. The 2nd accused stated that he was remorseful and asked for mercy for the sake of his minor children. He asked the court to consider that he would lose his job after serving for 17 years and that being send to jail would be double tragedy. Both accused told the court that they were not aware that they could reach out to the victims for reconciliation and that given a chance, they would do so.

8. The learned prosecution counsel told the court that the state had no previous criminal records of the accused and may be treated as first offenders. He left the sentence to the discretion of the court.

9. This court called for a pre-sentence probation report. The same were filed on July 5, 2022 The probation report in respect of Daniel Gachuku Nguru stated that he was a family man whose family depended on him as their bread winner. That he also supported their larger extended family including his deceased’s brother’s children whom he educated. The report states that the accused was remorseful. The probation report in respect of the 2nd accused states that he was his family’s bread winner with young children still in school. That he was remorseful and regretted the death of his colleague.

10. With respect to the victims the report states that the deceased’s family disintegrated after his death as the widow was suspected by the family of the deceased of having a hand in his death and she had to drop out of university in which she was being sponsored by the deceased and relocate to her maternal home in Nandi County where she struggles to raise their 2 young children. The victim impact statement contained in the report stated that the victims were bitter and prayed for justice for their deceased who was the family’s leading light.

11. The purposes of sentencing as set out in the Judiciary Sentencing Guidelines (2014) are:i.Retribution: to punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.iii.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law abiding person.iv.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.v.Community protection: to protect the community by incapacitating the offender.vi.Denunciation: to communicate the community’s condemnation of the criminal conduct.

12. The sentence imposed by the court should be proportionate to the offence. This was aptly stated in Hoare vs The Queen (1989) 167 CLR 348), as follows:-“A basic principle in sentencing law is that a sentence of imprisonment imposed by the court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.”

13. In Thomas Mwambu Wenyi vs Republic (2017) eKLR, the Court of Appeal cited the decision of the Supreme Court of India in Alister Anthony Pereira vs State of Mahareshtra at paragraph 70-71 where the court aptly summarized the objectives and principles of sentencing in the following words:-“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 jurispendence. 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.”

14. The two accused have already been convicted. They have also given their mitigation. The importance of mitigation was underscored by the Supreme Court in Francis Karioko Muruatetu and another, Supreme Court Petition No 15 of 2015 (2017) eKLR thus:-“It is during mitigation, after conviction and before sentencing, that the offender’s version of events may be heavy with pathos necessitating the court to consider an aspect that may have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness.”

15. I have considered the accused’s mitigation. They pleaded with the court to consider their moral blame worthiness. That being police officers on duty, they caused the unlawful death of their colleague due to an error of judgment. This court however found in its judgment that:-(51)“In this case, the accused told the court that they saw the suspect turn and shoot at them and that they only returned fire. The prosecution on the other hand demonstrated through the ballistic examiner’s report (exhibit 16) and the testimony of PW15 that the two accused fired 3 shots each, while there was no shot fired from the firearm issued to the deceased. This was AK-47 Riffle Serial No 111227(exhibit A4) which was produced in court by the investigating officer (PW17) as exhibit 1. There was also no bullet discharged from the firearm Ceska Pistol S3169 (exhibit2) issued to PW10 which the deceased was alleged to have had at the time of the shooting. This forensic evidence therefore shows that the deceased did not fire at the accused at all. Their defence that they shot back in self-defence is false and I dismiss it. My analysis of the entire evidence shows that the defence of self-defense is not available to them. They were not justified in unleashing three bullets each on a suspect who was already running away from them and posed no imminent danger.”

16. I have considered the mitigation against the purposes of sentencing set out above. I have also considered the authorities cited to me by counsel. The authorities show instances where courts have sentenced persons convicted of manslaughter to probation upon considering factors such as remorse, age, and circumstances of the offence. I have no doubt that the accused have reflected on their actions and were indeed remorseful. I acknowledge that they devoted their lives to public service having served for 30 and 17 years respectively, and; that a one time indiscretion brought their otherwise decorated careers to an abrupt end. These circumstances indeed calls for leniency.

17. The role of the court however is to balance the scales of justice. In this case, I have considered the views of the victims. Their lives were shattered. I find that a non-custodial sentence is not appropriate in the circumstances of this case.

18. Under the Penal Code the sentence for manslaughter is life imprisonment.(205)“Any person who commits the felony of manslaughter is liable to imprisonment for life.”

19. I have also considered that each accused was in pre-trial custody and for a period of one year before being released on bond, and which period I have discounted from the final sentence.

20. The 1st and 2nd accused is each sentenced to serve 5 years imprisonment from the date of conviction being June 8, 2022.

21. Each accused has 14 days’ right of appeal against both conviction and sentence.Orders accordingly.

SENTENCE DELIVERED, DATED AND SIGNED AT BOMET THIS 8TH DAY OF DECEMBER, 2022. ..........................R. LAGAT-KORIRJUDGESentence delivered virtually in the presence of the Accused (virtually present at Nairobi Remand Prison), Mr.Kibe Mungai for 1st and 2nd accused; Kiprotich (Court Assistant)