[2022] KEHC 9790 (KLR)

Republic v Rono (Criminal Case 2 of 2020) [2022] KEHC 9790 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9790 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 2 of 2020

RL Korir, J

July 14, 2022

Between

Republic

Prosecution

and

Benard Kipng'etich Rono

Accused

(JUDGEMENT AND SENTENCE UPON PLEA AGREEMENT)

Judgment

1. The Accused, Benard Kipng’etich Rono was originally charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 Laws of Kenya. Particulars of the offence were that on the 21st day of January 2020, at about 0100hrs at Longisa within Bomet county murdered Benard Kiprono.

2. The Accused was arraigned beore Dulu J on 3rd March 2020 where he took plea and denied the charge. The matter proceeded to trial. On 26th January 2022, after PW2, Caleb Kiprotich Langat who was an eye witness had testified, the Prosecution Counsel informed the Court that the parties wished to explore the option of plea bargaining. The Court allowed the prayer.

3. On 24th March 2022, Prosecution Counsel informed the Court that a Plea Agreement dated and filed on 23rd March 2022 had been entered into between the Accused and the State. The Court examined the Accused to satisfy itself that he understood the plea bargaining process and that he had executed the agreement voluntarily. Consequently, the Court accepted the plea agreement.

4. On 26th April 2022, the Prosecution charged the Accused person with the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The said charge was read and explained to him in Kipsigis language which he understood and responded, “It is true.” A plea of guilty was then entered.

5. The facts of the Information as read to the Accused were as follows: -On 21st January 2020, the Accused and the deceased were taking chang’aa when they started quarrelling over a debt of Kshs. 200/= owed to the Accused by the deceased. A fight ensued and they were separated by other patrons. The deceased ran away. The accused ran after him and at Longisa Cess barrier caught up with him and they started fighting. The deceased hit the Accused on his back. In retaliation, the Accused hit the deceased on the head. The officer at the Cess barrier called an ambulance and the deceased was rushed to hospital where he succumbed. A post-mortem was conducted on 27th January 2020 by one Dr. Nickson Mutai. Cause of death was severe head injury caused by assault with a blunt object. On 21st January 2020, the Accused was arrested and later arraigned for murder which has now been reduced to manslaughter. Post-mortem Report produced as Exhibit No. 1.

6. The Accused accepted the facts as correct. He was then convicted of the offence of manslaughter contrary to section 202 as read with section 205 on his own plea of guilty.

7. During the sentence hearing, counsel for the Accused submitted on his behalf that he (the Accused) was a young man aged 33 years and married with 2 children. That he committed the offence in self defence from his cousin but he greatly regrets the outcome of his actions. He prayed for a non-custodial sentence to enable the Accused take care of his young family. The Accused on his part reiterated what his counsel had stated in the submissions.

8. The Prosecution counsel on the other hand left the issue of sentencing to the Court’s discretion.

9. This Court directed that a Pre-Sentence Report be prepared for its consideration. The same was filed on 1st July 2022.

10. The Judiciary Sentencing Policy Guidelines (2016) outline the objectives of sentencing at paragraph 4. 1 as follows:-“4. 1.The sentences are imposed to meet the following objectives: -1. Retribution.2. Deterrence.3. Rehabilitation.4. Restorative justice.5. Community Protection.6. Denunciation.”

11. All these objectives must be considered in totality even though in certain instances they may be in conflict with each other as provided in paragraph 4. 2.

12. The Supreme Court of Kenya in Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 & 16 [Consolidated] of 2015, delivered on 6th July 2021 listed some of the factors that must be considered during sentencing. They stated thus: -“(71)To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a (re-hearing) sentence for the conviction of a murder charge:-i.The Age of the offenderii.Being a first offenderiii.Whether the offender pleaded guiltyiv.Character and record of the offenderv.Commission of the offence in response to gender-based violencevi.The manner in which the offence was committed on the victimvii.The physical and the psychological effect of the offence on the victim’s familyviii.Remorsefulness of the offenderix.The possibility of reform and social re-adaptation of the offenderx.Any other factor the court considers relevant”

13. In line with the above, paragraph 23. 8 on page 49 of the Policy Guidelines further suggests mitigating circumstances as follows: -“23. 8.Mitigating circumstances warrant a more lenient penalty than would be ordinarily imposed in their absence. They include:-1. A great degree of provocation.2. Commitment to repairing the harm caused by the offender’s conduct evidenced by the actions such as compensation, reconciliation and restitution prior to conviction.3. Negligible harm or damage caused.4. Mental illeness or impaired functioning of the mind.5. Age, where it affects the responsibility of the individual offender.6. Playing of a minor role in the offence.7. Being a first offender.8. Remorsefulness.9. Commission of a crime in response to gender-based violence.10. Pleading guilty at the earliest opportunity and cooperation with the prosecution and the police.

14. It is axiomatic that sentences must be commensurate to the offence commmitted by an accused. The sentence imposed by the court should be proportionate to the offence. This was enunciated by Howie, Grove and Barr JJ in R. vs. Scott (2005) NSWCCA 152 as follows: -“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed…One of the purposes of punishment is to ensure that an offender is adequately punished…a further purpose of punishment is to denounce the conduct of the offender.” (Emphasis added)

15. Section 205 provides the punishment for an accused person who has been convicted of the offence of manslaughter. It states: -“Any person who commits the felony of manslaughter is liable to imprisonment for life.”

16. The Criminal Procedure Bench Book at page 116 paragraph 24 provides that a maximum sentence should never be imposed on a first offender. From my perusal of the Pre-sentence Report, I noted that the Accused was on several occassions reported to the local authorities for criminal activities and was often considered a nuissance. The Report also stated that he had a negative image in the local community as he was often under the influence of drugs and alcohol. Indeed, from the statements in the Record, the Accused and the victim were said to have been drinking and he also admitted that he was under the influence of alcohol at the time of the offence. As such, his previous conduct and the numerous criminal cases reported the local chief lead me to believe that he was not a citizen of good moral standing neither was he a first offender even though no criminal record has been availed for this Court’s consideration.

17. I will now consider the circumstances of the offence. I am persuaded by the case of Benson Ochieng & Another vs. Republic (2018) eKLR, where Ngugi J stated thus: -“Re-phrasing the Sentencing Guidelines, there are four sets of factors a Court looks at in determining the appropriate custodial sentence after determining the correct entry point (which, as stated above, I have determined to be fifteen years imprisonment). These are the following:a.Circumstances surrounding the commission of the offence: The factors here include:i.Was the Offender armed? The more dangerous the weapon, the higher the culpability and hence the higher the sentence.ii.Was the offender armed with a gun?iii.Was the gun an assault weapon such as AK47?iv.Did the offender use excessive, flagrant or gratuitous force?v.Was the offender part of an organized gang?vi.Were there multiple victims?vii.Did the offender repeatedly assault or attack the same victim?b.Circumstances surrounding the Offender: The factors here include the following:i.The criminal history of the offender: being a first offender is a mitigating factor;ii.The remorse of the Applicant as expressed at the time of conviction;iii.The remorse of the Applicant presently;iv.Demonstrable evidence that the Applicant has reformed while in prison;v.Demonstrable capacity for rehabilitation;vi.Potential for re-integration with the community;vii.The personal situation of the Offender including the Applicant’s family situation; health; disability; or mental illness or impaired function of the mind.c.Circumstances Surrounding the Victim: The factors to be considered here include:i.The impact of the offence on the victims (if known or knowable);ii.Whether the victim got injured, and if so the extent of the injury;iii.Whether there were serious psychological effects on the victim;iv.The views of the victim(s) regarding the appropriate sentence;v.Whether the victim was a member of a vulnerable group such as children; women; Persons with disabilities; or the elderly;vi.Whether the victim was targeted because of the special public service they offer or their position in the public service; andvii.Whether there been commitment on the part of the offender (Applicant) to repair the harm as evidenced through reconciliation, restitution or genuine attempts to reach out to the victims of the crime.”

18. I have considered the circumstances of this case and in particular that the Accused and the victim were cousins. I have also considered the fact that prior to the incident, they had a good relationship, that they were both under the influence of alcohol which led to their disagreement and subsequent scuffle and that at the time of his conviction, the Accused was remorseful. This Court takes cognizance that the Accused willingly accepted his crime and saved the Court precious judicial time by embracing plea bargaining. 19. Alongside this, I have also put into consideration the mitigation from the Accused and the Pre-Sentence Report. It is evident from the said Report that though the family of the deceased agreed to stop the hostility between the two families, they were categorical that their sentiments did not extend to the Accused as they were still bitter with him and their family had suffered a great deal as a result of the death of their son. The community was also not ready to embrace the Accused and the local administration felt that a non-custodial sentence would provide the Accused with opportunity to do more harm.

20. Looking at the totality of these issues, the circumstances of the offence and its impact on the victim’s family together with the mitigation from the Accused, I am not persuaded that a non-custodial sentence would be appropriate. It is my finding that this offence warrants a sentence that is deterrent in nature, one that denounces the said act as well as ensures community protection. Based on the foregoing, the Accused will be better placed in custody where he can seek rehabilitation and reflect on his actions in order to become a better citizen.

21. The Accused is thus sentenced to serve twenty (10) years imprisonment. In arriving at this sentence, I have taken into consideration section 333(2) of Criminal Procedure Code and factored in the period spent by the Accused in pre-trial custody (see Bethwel Wilson Kibor vs. Republic [2009] eKLR). The sentence shall therefore run from 21st January 2020, being the date of his arrest.

22. Orders accordingly.

JUDGMENT AND SENTENCE DELIVERED, DATED AND SIGNED AT BOMET THIS 14THDAY OF JULY, 2022. ........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of Mr. Koske for the Accused, Accused present in person, Mr.Waweru holding brief Muriithi for the State and Kiprotich (Court Assistant).