[2018] KEHC 6181 (KLR)
Although the Penal Code prescribes the death penalty for murder, the Supreme Court decision in Francis Karioko Muruatetu grants the court discretion to consider mitigating factors and extenuating circumstances. In this case, the court considered the accused's status as a first offender, his youth, his remorse, and...
Source-derived case information.
- Citation
- [2018] KEHC 6181 (KLR)
- Parties
- Applicant: Republic; Defendant: Nicholas Kipkoech; Defendant: Victor Cheruiyot Rotich
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 20 & 21 of 2016
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- conviction and sentence
- Judges
- EM Ngugi
- Legal Topics
- Murder, Sentencing Discretion, Mitigation, Malice Aforethought
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Nicholas Kipkoech
Defendant
Victor Cheruiyot Rotich
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should be sentenced to death or a lesser sentence for the offence of murder.
- 2 Whether the accused's mitigation and extenuating circumstances warrant a non-custodial or reduced custodial sentence.
Ratio Decidendi
Although the Penal Code prescribes the death penalty for murder, the Supreme Court decision in Francis Karioko Muruatetu grants the court discretion to consider mitigating factors and extenuating circumstances. In this case, the court considered the accused's status as a first offender, his youth, his remorse, and the circumstances of the offence, which occurred while all parties were intoxicated. Despite the social inquiry report and family assertions of innocence, the court found the evidence established guilt beyond reasonable doubt. Balancing the gravity of the offence with the mitigating factors, the court determined that a custodial sentence of 20 years imprisonment was appropriate...
Court Disposition
conviction and sentence
Orders
- The accused, Nicholas Kipkoech, is sentenced to 20 years imprisonment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
HIGH COURT CRIMINAL CASE NO. 20 OF 2016
CONSOLIDATED WITH
HIGH COURT CRIMINAL CASE NO 21 OF 2016
REPUBLIC ............................................................ PROSECUTOR
VERSUS
NICHOLAS KIPKOECH ...................................... 1ST ACCUSED
VICTOR CHERUIYOT ROTICH ....................... 2ND ACCUSED
SENTENCE
1. In my judgment in this matter dated 2nd May 2018, I found the 1st accused, Nicholas Kipkoech, guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. It was my finding that he had, on the 3rd day of June 2016, at Kapkitonyi sub-location in Chemamul Location, Kericho West sub-location, with malice aforethought, murdered Leonard Kiprotich Sang.
2. I accordingly directed that a social inquiry report be prepared in respect of the accused to assist this court in reaching an appropriate sentence of the accused. A report has been prepared by the Probation Service, Kericho, which is undated but was filed in court on 11th June 2018.
3. The report indicates that the accused is 24 years old and is married with three children. His family members allege that he is innocent, and that his co-accused had confessed to the murder of the deceased.
4. In his mitigation, the accused stated through his Counsel, Mr. Kiprono, that he was remorseful that a precious life, the life of his cousin, was lost in avoidable circumstances, which he attributes to intoxication from alcohol. He is a first offender with a young family, and he prayed for a non-custodial sentence so that he can have an opportunity to sit down with the family of the deceased and they can forgive each other.
5. I have considered the social inquiry report and the mitigation made on behalf of the accused. I note that the accused is a first offender and is remorseful about the death of the deceased, though he maintains his innocence. It is interesting also that in the social inquiry report, both the accused’s relatives as well as those of the deceased maintain he is innocent, yet all the evidence before the court pointed to him as the perpetrator of the offence.
6. Be that as it may, this court found that on the evidence before it, the accused murdered the deceased with malice aforethought. Section 204 of the Penal Code provides that the penalty for murder is the death sentence. Pursuant to the decision in Francis Karioko Muruatetu vs Republic Supreme Court Petition Nos. 15 and 16 of 2015, this court has the discretion to consider the accused’s mitigation and any extenuating circumstances, and pass a sentence other than death.
7. Given the circumstances of this case, the fact that the offence was committed in a bar while all the protagonists appear to have been drunk, and the fact that the accused is a young man and a first offender, I hereby sentence him to 20 years imprisonment.
Dated Delivered and Signed at Kericho this 14th day of June 2018.
MUMBI NGUGI
JUDGE