[2023] KEHC 26087 (KLR)

Republic v Rop (Criminal Case E010 of 2022) [2023] KEHC 26087 (KLR) (1 December 2023) (Sentence)

Neutral citation: [2023] KEHC 26087 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E010 of 2022

JRA Wananda, J

December 1, 2023

Between

Republic

Prosecution

and

Cornelius Kibet Rop

Accused

Sentence

1. The Accused was charged with the offence of murder contrary to Section 203 as read with Section 205 of the Penal Code. The particulars were that on 24/02/2022, he murdered his brother, one Amose Cheriyot Rop. He took plea on 10/03/2022. The information, charge and particulars of the offence were read out to him. In response, the Accused stated that he accepted the charges. However, before the Court could enter a plea of guilty, his Counsel, Mr. Kigen intervened and requested for time to consult with the Accused in respect to the acceptance of the charges. Upon such consultations, Counsel informed the Court that the Accused had not fully understood the nature of the offence and that he wished to take the plea afresh.

2. In the circumstances, the Court directed that the Accused takes a fresh plea. Upon the information and the charge being read out to him again, he now denied the charge. Accordingly, the Court entered a plea of not guilty. The Accused was then admitted to bail. From the record however, he remained in custody throughout the trial.

3. On 19/04/2023 when the matter came up for hearing, the Court was informed that the defence, prosecution and the family of the deceased (which the accused also belonged to), were exploring a plea bargain agreement. On 14/06/2023, the plea bargain agreement was presented to the Court and the same indicated that the Accused had agreed to plead guilty to the lesser charge of manslaughter.

4. The Accused, who as aforesaid was represented by Mr. Kigen Advocate, was then sworn. Upon examination under Section 137F of the Criminal Procedure Act, he confirmed that he signed the plea-bargaining agreement together with his Counsel, voluntarily and without any coercion, and that he fully understood the effect thereof. Upon satisfying myself that the provisions of Sections 137E - 137G of the Criminal Procedure Act had been observed and complied with, including by the Court, the Accused took a fresh plea. He then pleaded guilty. The facts of the case were read out to him. He admitted the facts as being true. Accordingly, this Court then convicted him for the offence of manslaughter.

5. The Accused and the deceased were brothers. It is stated that on 24/02/2023 at around 7. 30 pm, the Accused, the deceased and another of their brothers, Nicholas Kiprono Rop were at their parents’ home when an argument ensued between the deceased and the accused, their mother arrived from the shopping centre and found them quarrelling, she tried to calm down the deceased who was violent and was armed with a panga and a knife, in the process the deceased threatened to slash her with the panga, Nicholas tried to intervene but the deceased slashed him on the left leg and he fell down, their mother managed to run away, the Accused then snatched the panga and knife from the deceased and slashed the deceased on the head using the panga, and the deceased died on the spot. The Accused then presented himself to the area Assistant Chief, who then escorted the Accused to Changaiya police post where he was arrested and placed in custody awaiting investigations, he was later handed over to the Directorate of Criminal Investigations (DCI) Eldoret South for further investigations. The panga and the knife were produced as exhibits.

6. Police officers visited the scene of crime, collected the deceased’s body and took it to Moi Teaching and Referral Hospital, on 8/03/2022 post-mortem was conducted on 8/03/2022 and the cause of death of the deceased was concluded to be “severe head injury secondary to sharp force trauma secondary to assault”. The Report was also produced.

7. Regarding sentencing, Prosecution Counsel, Ms Okok submitted that she had no previous records on the Accused hence he could be treated as a first offender, that having looked at the circumstances of the case, it is obvious that the deceased was the aggressor, she had managed to speak to the mother and brother of the deceased and they had forgiven the Accused whom they were willing to welcome home. She urged that a life had been lost and the Court must send out the message that it is not acceptable to take a human life. She then proposed a sentence of 4 years imprisonment from the date of arrest.

8. On his part, Mr. Kigen, Counsel for the Accused, prayed for a non-custodial sentence. He submitted that on the night of 24/02/2022, the deceased, being under the influence of alcohol, had made a clear indication that he wanted to kill his mother, between the deceased and the life of his mother were two persons, the Accused person and his brother, the deceased cut their brother and the Accused only acted in defence of his own life and that of his mother, there is need to note the situational analysis. He cited Part 2, paragraph 6 of the Judiciary Policy Guidelines on Sentencing and submitted further that the case runs deep into the morality of murder and asked the question, when does murder become the right thing to do?

9. He then submitted that under the “utilitarian theory” advanced by Jeremy Bentham, human action is geared towards that which is the greatest utility or of the greater good. He disagreed with the Prosecution Counsel’s plea to the Court to “send a message” while sentencing and also with her proposal for a 4 years prison sentence. On self-defence, he cited several authorities and urged that in this matter, the aim of the sentence should be to achieve justice, not necessarily by punishing but by putting reason. He added that retribution, deterrence and rehabilitation will not be achieved by custodial sentence, that at the time of the incident, the Accused was 20 years old, he wishes to complete his studies, the mother has already lost another son to suicide and that the Accused is the only son who had an education. He sought for a non-custodial sentence and added that the family is also poor and that the Accused is now 21 years old. In conclusion, he submitted that the Accused had been in custody for 16 months and urged that the time already spent in custody be taken into account.

10. I then directed that a pre-sentence Report be filed, which was done. The Report reiterated the narrative that the Accused killed the brother while trying to protect his mother and added that the community has no problem with him as an individual, they only have a problem with the nature and seriousness of the offence, that the area assistant chief opined that the offender should relocate to another area to avoid stigma associated with the offence, and that the family was willing to abide by this opinion and help the offender settle elsewhere. The probation officer then recommended a non-custodial sentence and specifically, that the Accused be placed on probation for a period of 3 years.

11. The applicable law on sentence for the offence of manslaughter is Section 205 of the Penal Code which provides as follows:“Any person who commits the felony of manslaughter is liable to imprisonment for life”

12. In considering the mitigating factors, I have considered the manner in which the offence was committed, namely, that the deceased was a known trouble-rouser within the family who always became violent after partaking of his much-loved alcohol. On the date of the incident, he was the aggressor and the Accused only joined in the quarrel to defend his mother and brother who were under attack by the deceased. The deceased was armed with a knife and a panga, he had already slashed the brother and could have caused much more bodily injuries. I have also taken into account the fact that the Accused was a first offender, he immediately reported and presented himself to the Chief and voluntarily accompanied the Chief to the police station where he was detained. He also pleaded guilty thus saving much judicial time. I have also considered the Probation Officer’s pre-sentence Report, the remorse displayed by the Accused and also the objects of sentencing as set out in the Judiciary Sentencing Guidelines and those set out in the case of Francis Muruatetu & another v Republic [2017] eKLR. I have also taken into account the young age of the accused and the desire that he ought to be allowed to get back into the society to rebuild his life.

13. I have however also taken into account the aggravating circumstance that upon dispossessing the deceased of the panga and the knife, the Accused used the same panga to slash the deceased. I observe that at that point, while the Accused could have opted to temporarily disable the deceased in any other way, he instead chose to use extreme force by slashing the deceased and in doing so, aimed right at his head, a sensitive area which the Accused must have known could result into death. The post mortem report paints the grim picture of a severe head injury caused by a very hard panga blow obviously meant to inflict maximum injury, the depth of the chop wound was reported to be 8 cm, exposing the frontal bone and causing a skull fracture. The force used was evidently not proportionate considering that the mother had already fled, the Accused had already disarmed the deceased and the deceased was in any event intoxicated.

14. I agree with the Prosecution Counsel that considering the circumstances, a non-custodial sentence would not be appropriate. A life was lost and the Court must reiterate that it is not acceptable to take a human life.

Final Orders 15. Having considered all the relevant principles and circumstances, I rule as follows:i.I hereby sentence the Accused to three (3) years imprisonment.ii.The period of imprisonment shall, as contemplated in Section 333(2) of the Criminal Procedure Act, be computed as from the date of arrest, 24/02/2022.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 1ST DAY OF DECEMBER 2023. ...........................WANANDA J.R. ANUROJUDGE