[2023] KEHC 24775 (KLR)

Republic v Sang (Criminal Case 41 of 2019) [2023] KEHC 24775 (KLR) (2 November 2023) (Sentence)

Neutral citation: [2023] KEHC 24775 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case 41 of 2019

JK Sergon, J

November 2, 2023

Between

Republic

Prosecutor

and

Peter Kipchumba Sang

Accused

Sentence

1. Peter Kipchumba Sang the accused herein, pursuant to a plea agreement was charged and convicted with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Codecap 63 Laws of Kenya. The particulars of the offence are that on the night of 19th & November 20, 2019 at Kipsitet Trading Center in Soin Sigowet Sub-County within Kericho County, the Accused unlawfully killed Leonard Kimutai.

2. Upon convicting the accused for the aforesaid offence, this court directed the county Probation Officer to file a pre-sentence report and also invited the Accused to make submissions in mitigation to guide the Court in determining the appropriate sentence to be meted out.

3. Mr Nyadimo Learned Counsel for the accused, submitted that the accused was convicted on his own plea of guilt through a plea bargain agreement. The accused is aged 46 years, with a wife and two children and he is the sole breadwinner. The accused was remorseful for his actions. He further submitted that the families had reconciled and undergone the traditional cleansing rituals. He presented the chief's letter dated October 2, 2023, in which the chief confirmed that the accused hails from his jurisdiction, was married and blessed with several children and that the accused is a disciplined and industrious person. He therefore urged the court to exercise leniency and give him a non-custodial sentence.

4. Mr Musyoki learned Assistant Director of Public Prosecutions submitted that the accused was a first offender, with no prior record, however, he pointed out that from the facts of this case, the accused had used a knife to inflict fatal injuries on the deceased.

5. This court also called for a pre-sentence report. I have considered the pre-sentencing report prepared and filed by the Kericho County – Probation Officer dated July 27, 2023. In the aforesaid report it is noted that the accused is married to two wives namely Teresa Cheruiyot and Faith Tonui and has several children. The accused is a responsible person, never spends time with individuals of questionable character nor associated with the commission of petty crime in the community.

6. On the material day, at about midnight, he arrived at the house where the second wife was staying at Kipsitet Trading Center, however, he found that his wife was in the company of another man (the deceased herein) and a scuffle ensued. The deceased picked a knife in the room with intent to stab the offender, however, the offender managed to overpower him, twisting the hand holding the knife and the knife stabbed the deceased on the thigh, which injury was fatal as the deceased bled profusely and collapsed. The offender acting in fear fled from the scene, however, in the days following the incident he visited relatives in Litein where he was advised to surrender at Litein Police Station. The offender was subsequently arrested and charged.

7. The accused person was remorseful for the offence and regrets his actions, he maintained that the offence was not premeditated, attributed his actions of that fateful night to his wife's lack of fidelity. He stated that he has a young family who fully depend on him as the primary breadwinner, he therefore beseeched this court to exercise leniency.

8. The family of the offender regretted the circumstances under which the offender cut short the life of the deceased, the family had conducted reconciliation talks and performed the traditional cleansing rituals. They were willing to receive the offender and assist towards his rehabilitation and reintegration into society. They stated that while he was out on bond, he did not jeopardize justice nor was he associated with committing petty crimes in the community. They were therefore in favour of a non-custodial sentence to allow him to continue taking care of his family.

9. The deceased's family urged the court to exercise leniency when sentencing the offender, they forgave him and the two families had performed cleansing rituals and reconciliation meetings.

10. The local administration in particular the assistant Chief Mr Birei stated that the offender was domiciled in his area of jurisdiction, the offender was well known to him as a responsible and hardworking person, relates well with other community members, bears no criminal record and further that the community members do not hold any grudge against him and even while he was out on bond there was no hostility and /or animosity directed at him from the community. He therefore proposed a non-custodial sentence.

11. The county probation officer while taking cognizance of the fact that offence was not premeditated, the offender is the primary breadwinner and fully sponsors his two children in secondary school whose education may be affected if the sponsorship is cut and the sentiments of the community members, local administration, the deceased's and the offender's family who had performed the necessary cleansing rituals and reconciliation meetings concluded that this was not a case warranting a stringent deterrent sentence. The county probation officer therefore recommended that the offender was suitable to benefit from a probation order sentence and while on non-custodial supervision would be counseled and helped to manage his behaviour, anger and encouraged to maintain sobriety in the community.

12. I have taken cognizance of the fact that the accused entered into a plea bargaining agreement and therefore saved the court's time for trial.

13. I have considered that the accused was arraigned in court on December 4, 2019 and remanded in custody and had been in custody for a period of seven (7) months before being released on bond on July 8, 2020.

14. Having considered the circumstances of the offence, submissions in mitigation and having further considered the pre-sentence report, it is apparent that in the circumstances of this case that a non-custodial sentence is appropriate.

15. Consequently, I hereby sentence the accused namely: Peter Kipchumba Sang to three (3) Years’ Probation under the supervision of the Kericho county Probation Officer.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 2ND DAY OF NOVEMBER, 2023. …………….J. K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – Mr. MusyokiConvict – Present in PersonNyadimo for the Accused2| Page