[2017] KEHC 2602 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCR NO. 53 OF 2017

[FORMERLY NAKURU HCCRCNO. 20 OF 2016]

REPUBLIC................................................PROSECUTION

VERSUS

PEREZ KIPTOO KIPRUTO...............................ACCUSED

JUDGMENT

Introduction

1. The accused had initially been charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code. Upon a plea agreement entered into by the accused and the DPP on the factual basis, which the court accepted, that the killing was involuntary and occasioned in circumstances of drunkenness, the charge was reduced to manslaughter contrary to section 202 as read with 205 of the Penal Code. The court was satisfied of the voluntariness of the plea upon examination of the accused on oath. The Court was also satisfied of the accused’s fitness to plead by a certificate dated 28th April 2016 by Dr. Njau, a Consultant Psychiatrist.

The facts of the case

2. The facts of the case as set out by the DPP were as follows:

“FACTS

7. On. The 11th day of April 2016 at about 1500hrs, the deceased was in company of his two brothers (the accused and one David Rutto). They were taking alcoholic drinks along a river near their homestead at Kabarasoi village. A disagreement arose between the deceased and the accused and they exchanged words. The three brothers left the drinkingden and each went to his homestead. Later the deceased appeared at the accused’s homestead whilst armed with a Panga and a bolt fitted rungu. He attacked the accused only for him to miss. The accused advanced to a nearby fence and broke a piece of wood which he sued to hit the deceased with on head. The deceased fell down and the accused disarmed him and used the panga and bold fitted rungu to hit the deceased on the head. He took the panga, bolt fitted rungu and piece of wood and went into his house. Their mother saw the deceased and she screamed, it attracted members of the public who assisted her in taking the deceased to Eldama Ravine sub county hospital. He was admitted in a coma and referred to Nakuru provincial general hospital after an x-ray showed a fracture to the skull. He succumbed while being transported to Nakuru. A postmortem was conducted on 15. 04. 2016 and the doctor opined the cause of death as increased intracranial hemorrhage due to head injury. The accused was arrested and the panga, bolt fitted rungu and the piece of wood recovered from his house and were kept as exhibits. The accused was taken to court and charged with the offence of murder which has now been reduced to manslaughter. The accused person was thereafter presented before the doctor at Nakuru Provincial General Hospital for mental assessment who confirmed he was mentally fit to stand trial.”

Conviction

3. The accused accepted the facts saying in Tugen language with interpretation into English that the facts were true, and the Court, being satisfied that he was fit to plead, convicted him for the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code.

4. The Court must then determine the appropriate sentence for the offence.

Mitigation

5. In mitigation, Counsel for the accused Mr. Kemboi urged as follows:

“Accused has pleaded guilty and owned up to his action. He is remorseful for killing his blood brother. This was a domestic squabble which became fatal. The two brothers were drunk and they were not under control of their actions. The accused is a father of 10 children with one wife. 6 of the kids are in High School. 8 of the children are in school; 2 have cleared.

The deceased is an elder brother with older children some of whom are married. The family has done cleansing ceremony as per Tugen customs and the family of the deceased have forgiven the accused.

The accused prays for leniency in sentencing and seeks non-custodial sentence.”

Pre-sentence report

6. A presentence report ordered by the Court concluded as follows:

“CONCLUSION

Social inquiry reveals the deceased was an aggressor and they quarreled whenever they drunk alcohol but had not had a fight. The family homestead used to brew changaa but they have stopped after the incident. The accused has children still in school who need his support since the wife deserted the matrimonial home ten years ago and the mother is advanced in age. The family has no objection if the accused is granted non-custodial sentence.

RECOMMENDATION

Considering the best interest of the children and the fact that the family resolved to forgive him, the accused may be ordered to serve non-custodial sentence preferably probation for the period the honourable court deems fit. However, this is subject to court’s discretion.

Julius Kibet Limo

Probation Officer

Baringo County

18/0

Determination

7. I have considered the circumstances of the case including the mitigation by the accused and the pre-sentence report by the Probation Officer. The Court notes that, save for the attitude of the immediate family of the deceased and the accused, the report does not give a position of the local community and administration on the matter. However, despite the forgiveness by the family of the deceased, which is also the accused’s family, the Court takes a serious view of the prevalence in the area of cases of killings among relatives following disagreements after drinking sprees. The accused persons who so readily employ fatal force to counter a drunken disagreement must be deterred of the evolving culture. I reiterate what this Court has said in Kabarnet HCCR.C No. 38 of 2017, R. v. William Kibet Kipchumba, that:-

“The sentence passed on the accused herein must reflect the moral blame-worthiness of the accused who in excessive force used a panga to stall an attack by the deceased during a fight in which they both had no weapons to call for the use of a dangerous weapon of a panga. If every fight between two or more people who could not agree on something resulted in the death of one of them, this world would be a very dangerous place to live in because naturally many disagreements result in a fight between the antagonists.”

8. The accused herein though trying to fend off the attack by his brother following their quarrel did not have to further assault the deceased with the panga and bolt fitted rungu on the head when he had already disarmed him after hitting him with a piece of wood on the head and the deceased fell down.The casual manner that he treated the incident as reported that “He took the panga, bolt fitted rungu and piece of wood and went into his house”betrays his lack of remorse for his heinous act, which the court does not countenance. It was unfortunately a sad case of literally beating a man when he is down, with tragic consequences.

9. In considering the appropriate sentence, I think it is not significantly material that certain customary law cleansing rites have been performed by the family members of the accused and the deceased in this matter. The public interest in combating the serious crime of manslaughter and the society’s revulsion on the criminal act of killing a fellow human being must outweigh the immediate family’s private interest in cleansing and forgiving for their own purposes one of their own who commits the offence.

10. The accused is deserving of severe punishment for deterrence, and the Court considers that a sentence of imprisonment for five (5) years is just punishment.

Orders

11. Accordingly, for the reasons set out above, the Court having convicted the accused of the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code sentences the accused to serve imprisonment for five (5) years. In accordance with the Proviso to section 333 (2) of the Criminal Procedure Code, the sentence will run from the date that the accused was arrested in 11th April, 2016.

DATED AND DELIVERED THIS 2ND DAY OF NOVEMBER 2017.

EDWARD M. MURIITHI

JUDGE

Appearances: -

Mr. Kemboi, Advocate for the Accused

Ms. Macharia, Ass. Director of Public Prosecutions.