[2023] KEHC 26475 (KLR)

Republic v Rotich (Criminal Case E004 of 2022) [2023] KEHC 26475 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26475 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E004 of 2022

RL Korir, J

December 15, 2023

Between

Republic

Prosecution

and

Benard Rotich

Accused

Judgment

1. Benard Rotich (Accused) was charged with the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that on 29th day of January 2022 at Kipsingei village, Ndanai division in Sotik Sub – County, within Bomet County murdered Isaac Rotich.

2. The Accused took plea on 10th February denied the charge and the case was scheduled for trial which failed to take off several times for various reasons. When the matter came up for mention on 2nd October, 2023 the Accused told the court that he wished to plea bargain.

3. A Plea Agreement was subsequently filed on 24th October, 2023. The court accepted the Plea Agreement and the Accused was charged with the lesser offence of manslaughter to which he pleaded guilty.

4. The facts of the case were contained in the Plea Agreement and were read out by the prosecutor as follows;On the night of 28th and 29th January, 2022 the deceased Isaac Rotich arrived home drunk. He knocked on his father’s door and his mother Esther Chengetich opened for him. He called his father Francis Too and threatened to kill him because he had complained in a matter where he accused was jailed for two years.The parents raised an alarm and the other siblings including the accused Benard Rotich responded. Upon being accosted by his brothers, the deceased retreated to his house but the accused who was also drunk followed him. They both entered the house and started fighting. The accused overpowered the deceased and assaulted him using a wooden stick and a hammer and left him unconscious. Their mother kept vigil until the next morning when another brother namely Kipkemoi Rotich took the deceased to Ndanai Sub-county hospital where he succumbed to the injuries while undergoing treatment. the cause of death was established to be severe head injury due to assault. The accused was arrested and charged with murder. He has now offer to plead guilty to the lesser charge of manslaughter.The family of both the deceased and the accused has informed the state that they have forgiven the accused and have no objection to reduction of the charges. The prosecution and the investigation team accept that:i.The Accused and deceased are brothersii.The deceased threatened to kill his father over a previous disputeiii.The Accused came to the rescue of their fatheriv.Both the deceased and the accused were drunk and engaged in a fierce fight which resulted in the demise of the deceased.

5. The Accused confirmed the facts as true and was consequently convicted on his guilty plea. The court directed the filing of submissions in mitigation, a Probation Officer’s Pre-sentence Report and a Victim Impact Statement.

6. At the sentencing hearing on 15th November, 2023, defence counsel Mr. Barusei relied on their written submissions as well as on the pre-sentence report. He urged the court to impose a non-custodial sentence. On their part, prosecution acknowledged that the Accused has saved state resources by plea bargaining and was a first offender. Learned prosecution Counsel Njeru however prayed for a custodial sentence as the Accused

7. Sentencing serves multiple purposes as set out in the Judicial Sentencing Policy Guidelines 2023 paragraph 1. 3.1. as follows: -Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other- in so far as possible, sentences imposed should be geared towards meeting the objectives in totality.i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Community Protection.vi.Denunciation.vii.Reconciliation.viii.Reintegration.

8. Before passing sentence, the court is required to consider the impact of the offence on the victims. In Jacob Kirimu Kabiru v Republic [2010] eKLR, the Court of Appeal held that: -“We believe that the restricted right of appeal where a bargain has been struck is to assist in speeding up the process and to attain finality at the earliest time possible. However, we note that the superior court even after realizing that the plea was based on a plea bargaining agreement did not consider the mandatory provisions of section 137 I (2) of the Criminal Procedure Code and in particular, the need to take into account a victim impact statement. In our view, such a victim impact statement would have been

9. I have considered that the deceased and the Accused were brothers and therefore the victims were also the offender’s family. The Probation officer documented that the family had forgiven the Accused and were ready to have him reintegrated. That the family had forgiven him and prayed for a non-custodial sentence.

10. I have considered the circumstances of the offence that the Accused fought with his brother the deceased when the later threatened to kill their father. That both of them were drunk at the time of the offence and that the deceased was the aggressor.

11. I have however considered the fact that Accused followed the deceased to his house where they fought. That in the course of the fight, the Accused assaulted the deceased causing him severe head injury from which he later died.

12. I have considered that the Accused plea bargained and saved precious judicial time and further that he has been in pre-trial custody for a period of one year as he was unable to raise the bond terms.

13. It is the view of this court that the Accused shall benefit from a lenient custodial sentence where he can be rehabilitated from alcoholism and acquire skills to enable him lead a more productive life. The prison term will aid him reflect on his life and the offence he committed. The sentence will also serve a deterrent purpose for those who commit offences under the guise of drunkenness.

14. The Accused shall serve 3 years’ imprisonment from the date of this judgement.

15. Orders accordingly

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 15TH DAY OF DECEMBER, 2023. .........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Njeru for the State, Mr. Merebu holding brief for Joan Cherotich for the Accused, Accused present and Siele (Court Assistant)