[2023] KEHC 25628 (KLR)

Republic v Samoei (Criminal Case 5 of 2023) [2023] KEHC 25628 (KLR) (15 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25628 (KLR)

Republic of Kenya

In the High Court at Eldama Ravine

Criminal Case 5 of 2023

RB Ngetich, J

November 15, 2023

Between

Republic

Prosecution

and

Samson Kiprono Samoei

Accused

Sentence

1. The accused Samson Kiprono Samoei had been charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars of the charge being on the 1st day of April,2018 at Torokwonin village, Kiplombe Location in Koibatek Sub- County within Baringo County, the accused murdered Musa Lorot.

2. The charge was read over to the accused who denied the charge and the matter was set down for full hearing. However, when the matter came up for mention before Honourable Justice Matheka on the 26th January, 2023, the defence counsel Mr. Mwaita informed the court that he wished to explore plea bargaining. The court then fixed the matter for hearing on the 27th April,2023 and directed the parties to pursue plea bargaining before then.

3. On the 13th July,2023 the plea agreement was duly executed. The charge of the offence of Manslaughter contrary to section 202 as read with section 205 of the Penal Code was reduced to manslaughter following a plea-bargaining agreement. On 13th day of July, 2023, the charge and its particulars were read over and explained to the accused who pleaded guilty and was convicted on his own plea of guilty.

Brief Facts Of The Offence 4. On the 1st day of April,2018 at around 9: 00A.M, at Tarakwonin village, the deceased Musa Lorot was with his wife Emily Kemoi Lorot and their children among them Brian Kiptoo Lorot aged 8 years at their garden planting up to around 1P.M when they stopped for lunch. After lunch, the accused who was their neighbor visited them. He asked the deceased’s wife whether a five-litre busaa she had brewed was ready. She told him it will be ready by 4:00P.m. The deceased, his wife and Brian went back to the garden and resumed planting till 4: 00p.m when the deceased’s wife went to the house to prepare busaa.

5. The deceased later joined his wife and started drinking together. After a short while, the accused joined them and ordered for a cup of busaa costing Kshs 50/= and paid for it and while still enjoying the drink, the accused gave out Kshs 100/=and demanded for change which the deceased did not have at that time. The deceased requested for the accused to wait shortly for him to get the change but the accused became inpatient and picked up a stone and hit the deceased on the forehead. The deceased fell down. The accused left to his home which is about 400 meters from the deceased’s home.

6. After a short time, the accused came back while armed with a bow and arrows and still demanded for his Kshs.50/= while standing at about 70 meters away warning the deceased not to get near him and after quarrelling him, he aimed and shot the deceased with an arrow on the right side of the deceased’s neck. The deceased fell down bleeding profusely. The accused then left the scene. The wife of the deceased who was present when the incident occurred cried for help but no one came to her rescue and at around 7:00p.m she sent her children to proceed to go and inform her sister. She tried to remove the arrow stuck on head from the neck of the deceased. Her sister did not come but fortunately, she managed to remove the said arrow head though with difficulties and kept it. At around 9:00 P.m when she went to a neighbour namely Laban Kiptoo and informed him of the incident. He assisted her to call the area assistant chief namely Michael who arrived at the scene at around 11:40 p.m in the company of William Yator and found the deceased’s wife, Laban and one Victor Sol.

7. The deceased’s wife narrated to the assistant chief what had happened who then organized to look for the accused person since he knew his homestead. The Assistant chief, Laban, Victor and William decided to look for the accused’s brother one Patrick Samoei whom they found at around 1:00 a.m and they informed him that the accused had shot the deceased with an arrow. They accompanied the accused’s brother to the accused’s home where they found him sleeping inside his house. They recovered arrows and a bow from the house.

8. The accused was escorted to the scene, the wife of the deceased identified him and after which she handed over a broken arrow to the Assistant chief and they later escorted the suspect to Esagari Ap post. DCI officers and the OCS Eldama Ravine visited the scene and found the body of the deceased still lying at the scene with injuries at the forehead and at the right side of the neck. They took over the broken arrow from the Assistant Chief and recovered a blood-stained stone from the scene and a blood stained jamper from the accused person.

9. The accused was then escorted to Eldama Ravine police station. Post mortem on the body of the deceased was conducted by Doctor Kamau at Eldama Ravine District Hospital on the 11th April,2018 where the pathologist formed the opinion that the cause of death was injury to vital blood vessels caused by a sharp object causing hemorrhage.

10. Thereafter blood samples were taken from the body of the deceased to be submitted to the Government chemists to be compared with the blood in the exhibits.

11. The police file was compiled and the accused arraigned before court and charged with the offence of murder now reduced to manslaughter following plea bargain. The facts and its particulars were read over to the accused. He admitted the and was convicted on his own plea of guilty. The prosecution informed the court that the accused be treated as a first offender.

Pre-Sentence Report 12. The court called for a pre-sentence report which was filed on the 17th October,2023. From the report that the accused was born in the year 1988. He had formal education up to class 6 where he was forced to drop out of school as a result of financial challenges in the family and once out of school, he engaged himself in herding for a period of about 4 years’ prior to his arrest, he was engaged in farming. The accused attempted marriage twice but both were not successful. He was separated from his wives at the time of his arrest. The accused expresses remorse for the offence committed. He admits to the charge stating that he differed with his neighbour and the two got embroiled in a quarrel which escalated into a fight where the accused picked an arrow which he used to shoot the victim inflicting fatal injuries.

13. The area administration stated that the accused did not have a past criminal record but has been unable to reconcile the relatives of the late victim and those of the accused person.

14. A sister of the accused stated that the accused’s conduct in the past was good. The views of the victim’s family were not captured as the victim had not lived in the area for long but had briefly settled there performing casual jobs.

15. The Probation Officer indicates that efforts to reconcile the family of the accused and that of the victim through the office of the area chief have not borne fruits since the two wives of the late victim could not agree on the terms of the negotiation. That the 1st wife had by the time of the offence separated and married another man. Her son demands for compensation for the loss of their father. The 2nd wife had lived with the deceased and they had 3 children before he was killed. The second wife has since moved on with life thereafter. The relatives of the victim could not be traced since he had migrated from the area in search of employment.

16. The Probation Officer states that in light of the above, his office is of the view that the home environment is not conducive for his reintegration.

Mitigation 17. Mr. Mwaita representing the accused mitigated on his behalf. He stated that the convict is remorseful of the offence and seek court’s leniency since he did not intend to kill the deceased. He submitted that he is a 35 years old young man not married and who lives with his 2 brothers and the mother aged between 50 and 52 years. That his father is deceased.

18. Counsel submitted that the accused dropped out of school in class six and he was arrested on the 1st April,2018 and has been in custody for a period of five years now. Counsel urged the court to consider the period the accused has been in custody while meting out the sentence. That the accused has sought forgiveness from the deceased’s relatives who have agreed to forgive him. Counsel stated that the accused is requesting for a non-custodial sentence so that he can advance the issue of family reconciliation under Tugen culture. That the accused has learned and he is ready to change and be a good citizen and being a first offender, he urged the court to consider this.

19. Ms. Ratemo representing the state submitted that although there was no intention to commit the offence, the accused used unreasonable force in trying to mitigate the situation and therefore occasioned the deceased to lose his family. That the deceased had a family which he was supporting through casual labour and his family has been left with no one to take care of them.

20. The prosecution sought for custodial sentence so that he can be rehabilitated on anger management. That there were 2 wives who were dependent on the deceased who have been left widowed.

Determination 21. Under section 205 of the Penal Code a person convicted of Manslaughter is liable to imprisonment for life. However, in Malindi Court of Appeal Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso Versus Republic the Court of Appeal declared life imprisonment unconstitutional. The court has discretion to impose determinate sentence depending on circumstances of each case.

22. I have considered sentiments by the victim’s family, the accused’s family and the local administration. I have also considered that accused is a first offender. The accused attacked and shot his opponent with a bow and arrow out of rage and anger. The accused might have felt provoked by the deceased’s actions but there were other ways of settling disputes rather than resorting to violent attacks which result in loss of precious lives.

23. I have taken into consideration the circumstances leading to the occurrence of the offence. Even though the accused acted as a result of rage and anger, the use of bows and arrows to inflict the injuries, is an aggravating factor. I take note that there is no reconciliation so far between the family of the accused and family of the deceased and as confirmed from the presentence report, the ground is still hostile for accused. In view of the above, I am inclined to impose custodial sentence.

Final Orders:- 24. Accused to serve 20 years imprisonment.

25. Period served in remand to be reduced from the sentence.

26. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KABARNET THIS 15TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGE