[2017] KEHC 3518 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCRC NO. 20 OF 2017

(FORMERLY ELDORET HCCR NO. 79 OF 2013)

REPUBLIC .........................................PROSECUTOR

VERSUS

SAMUEL KACHUMO KIPCHESICH........ACCUSED

JUDGMENT

1. The Accused was originally charged with murder contrary to section 203 as read with 204 of the Penal Code, which was later reduced to manslaughter following a plea bargain agreement on the basis that the killing of his deceased wife was unintentional. The factual basis for the plea bargain agreement was urged as lack of intention to kill, follows:

“The plea agreement is based on the facts that the accused and the deceased were alone when the offence was committed. There was no eye witness. No neighbours within 200 metres where they lived and we only relied on the report by the accused person. The deceased and the accused are wife and husband. We relied on the report by the accused that they had a domestic quarrel and he hit the deceased on the head and he did not intend to kill her.”

2. Without proof of the necessary mens rea for the offence, a conviction for the offence of murder is impossible, and the Court therefore accepted the said factual basis as a justification for the plea bargain on the lesser offence of manslaughter. The Court also noted the accused’s certificate of fitness to plead upon mental assessment by a doctor and also confirmed the unequivocalness of the plea by the appellant upon examination on oath by the Court. The court then approved the plea bargain and a new charge of manslaughter was brought against the accused who on being put to the information of manslaughter said, in Tugen language with interpretation by the Court clerk, that it was true, and a plea of guilty was entered for the offence of manslaughter.

3. The facts accepted by the accused were that:

Facts

“On the 27th day of September 2013 at about 9. 00pm, the accused went to the house of his mother and informed her that he had killed the deceased, SALINA RINGOI KACHUMO who was his wife. The mother of the accused sought assistance from her neighbour, JESARO and they called her grandson, WILFRED YEGO. YEGO who was a police reservist went to the house of his grandmother and after confirming the report he had received, proceeded to the house of the accused and found the body of the deceased. He called the police who collected the body and took it to Kabarnet District Hospital mortuary where the post morterm was done. On the 28th of September 2013 at around 9. 50am, the accused surrendered at Kinyach Police Station and reported that he is the one who had killed the deceased. He told the police that he was alone with his wife in the house and nobody else had witnessed the killing. There were no neighbours within 200 meters from the accused and deceased homestead and therefore nobody heard the confrontation that led to the death of the deceased. The post-mortem was conducted on the 3rd October, 2013 where it was established that the deceased’s cause of death was head injury with resultant haemorrhage brain injury and swelling. The accused person was thereafter presented before the doctor at Kabarnet District hospital for mental assessment who confirmed that at that time he was mentally fit to stand trial.

The accused person was initially arraigned before court on the 6th November, 2013 on the offence of murder which has now been reduced to that of manslaughter.

The accused person knowingly, voluntarily, and truthfully admits the facts contained herein.”

Conviction

4. The Court noted the acceptance of the facts by accused and consequently accepted his plea of guilty and convicted him on his own guilty plea for the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code.

5. The DPP had no previous record of conviction of the accused and the court was therefore urged to treat the accused as a first offender.

Sentence.

6. In mitigation Counsel for the accused, Mr. Tarus, urged as follows:

“Accused is remorseful. The accused did not intend the action. They both drunk as they are Busaa brewers. They quarrelled and it resulted in the death of the wife. The accused is over 70 years. He has six children some school going. He is the sole bread-winner. Since he has been in custody his property and animals went to waste as there was no one to take care of them. He has been in custody for 4 years since September 2013. He was taking care of his mother who is now over 90 years of age. We pray for leniency and non-custodial sentence.”

7. I consider that the accused moral blame-worthiness is diminished by the fact that the quarrel that resulted in his dealing the fatal blow from which his deceased wife died occurred in circumstance where both were drinking Busaa. The accused has also adequately paid for his crime by the long incarceration before his matter came to trial. I have also noted that the deceased’s family as reported in the Probation Officer’s pre-sentence report, have “come to terms with the loss of their daughter and no longer harbour bitterness against him [accused]” and their children had forgiven him.

8. Accordingly, I accept the Probation Officer’s recommendation for a probation sentence, having regard to the old age of the accused and the circumstances of the case in which a custodial sentence is inappropriate in view of the long pre-trial detention of 4 years and having regard that t6his court has previously considered suitable sentence for the offence of manslaughter imprisonment terms of 3 ½ – 5 years.

ORDERS

9. For the reasons set out above, having convicted the accused on his own plea of guilty to the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code, and having considered the 4 year period of accused’s pre-trial detention, I sentence the accused to serve Probation for a period of ONE (1) year under the supervision of the County Probation Office, Baringo.

DATED AND DELIVERED THIS 13TH DAY OF SEPTEMBER 2017.

EDWARD M. MURIITHI

JUDGE

Appearances:

Mr. Tarus for the accused person

Ms. Macharia Ass Director of Public Prosecutions for DPP.