[2022] KEHC 14972 (KLR)

Republic v Sigei (Criminal Case 18 of 2020) [2022] KEHC 14972 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14972 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 18 of 2020

RL Korir, J

November 9, 2022

Between

Republic

Prosecution

and

Josphat Kipkirui Sigei

Accused

Judgment

1. The Accused, Josphat Kipkirui Sigei was originally charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. Particulars of the offence were that on the 30th day of August 2020, at Balek Trading Centre, Silibwet Location ni Bomet Central Sub County within Bomet county, murdered Jacob Kipkirui Langat.

2. The Accused was arraigned before this court on January 28, 2021 where he took plea and denied the charge.

3. On November 4, 2011, when the trial commenced Ms Chirchir acting for the the Accused told the court that she had instructions to plea bargain on the charge. Only one witness testified and thereafter the trial was stood over to allow the parties time to plea bargain.

4. On March 24, 2022, the Accused’s counsel informed the Court that a Plea Agreement between the Accused and the State dated March 24, 2022 had been filed. The court after considering the Agreement and satisfying itself that the Accused executed the same voluntarily, accepted the Agreement.

5. The Prosecution subsequently charged the Accused with the lesser offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code, Cap 63 Laws of Kenya.

6. The Accused took plea on April 27, 2022 on the lesser charge of manslaughter. He pleaded guilty to the charge.

7. The facts of the case as contained in the Plea Agreement were read by the Prosecution Counsel as follows:-On the 30th day of August 2020, the Accused Josphat Kipkurui Sigeiat Balek Trading Centre Sinilibwet Location, Bomet Central Sub County within Bomet County murdered Jacob Kipkurui Langat.On the material day, the accused person went to Balek Trading Centre to play the pool game. The deceased person Jacob Kipkirui Mutai was the caretaker of the houses among them being the house in which the accused was playing pool. The accused person went to a nearby shop and purcahsed a belt. The accused then removed the belt he was wearing and put on the new one. He then hanged the old one on the wall and went outside. When the deceased went to the room, he saw the belt and asked for the owner and he was informed that it belonged to the accused person. The deceased then asked the accused why he had left his old belt hanging on the wall. An arguement ensued between the deceased and the accused person which led to a fight. The accused then walked to some distance, picked a stone and threw it at the deceased person. The deceased person was hit on the head and fell on the ground. The deceased person was rushed to Tenwek Hospital but he unfortunately succumbed to the injuries.On September 6, 2020, the accused herein was arrested and later arraigned in court and charged with murder and which offence has now commuted to a charge of manslaughter.

8. The Accused accepted the facts as correct. He was then convicted of the offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code on his own plea of guilty.

9. The Judiciary Sentencing Policy Guidelines (2016) outline the objectives of sentencing at paragraph 4. 1 as follows: Retribution, Deterrence, Rehabilitation, Restorative justice, Community Protection and Denunciation

10. The Supreme Court of Kenya in Francis Karioko Muruatetu & Another Vs Republic, Petition No 15 & 16 [Consolidated] of 2015, listed some of the factors that must be considered during re-sentencing. They stated thus: -“(71)To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a (re-hearing) sentence for the conviction of a murder charge:-i.The Age of the offenderii.Being a first offenderiii.Whether the offender pleaded guiltyiv.Character and record of the offenderv.Commission of the offence in response to gender-based violencevi.The manner in which the offence was committed on the victimvii.The physical and the psychological effect of the offence on the victim’s familyviii.Remorsefulness of the offenderix.The possibility of reform and social re-adaptation of the offenderx.Any other factor the court considers relevant”These factors apply equally to sentencing in the first instance.

11. Sentences must be commensurate to the offence commmitted by an Accused. The Court of Appeal in the case of Thomas Mwambu Wenyi Vs Republic(2017) Eklr cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtrawhere the court held the following on sentencing:-“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence”.(See also Republic vs Cornelius Thuku Mbulika (2020)eKLR)

12. The circumstances of the case were that the Accused and the deceased engaged in an arguement about a belt before a scuffle ensued. The said scuffle resulted in the Accused picking up a stone and throwing it towards the deceased. The stone hit the deceased on the head and the deceased later succumbed to the injury at Tenwek Hospital.

13. The court inJoseph Kaberia Kahinga & 11 Others V Attorney General[2016] eKLR had this to say in respect of mitigation:“But what is mitigation in our context?” Simply understood, the word mitigation means the act of lessening or making less severe the intensity of something unpleasant such as pain, grief or extreme circumstances. It is an act of making a condition or consequence less severe and in our case it is the act of making a punishment or sentence in a criminal case less severe. In Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed. mitigation is defined as: “Alleviation; abatement or diminution of a penalty or punishment imposed by law. ‘Mitigating circumstances’ are such as do not constitute a justification or excuse of the offence in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.”

14. Section 216 of the Criminal Procedure Code provides:-"The Court may, before passing sentence or making an order against an accused person under section 215 receive such evidence as it thinks fit in order to inform itself as to the sentence or order to be passed or made."

15. Section 329 of the Criminal Procedure Code provides:-"The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed."

16. The Accused’s Counsel submitted that the Accused was remorseful and that he had no intention to kill the deceased. In summary, Counsel submitted that the Accused had received Christ as his personal saviour and asked that the Accused be given a non custodial sentence.

17. The Accused stated that he came from a poor family and that he was the 6th born in the family of 7 children. That out of all his siblings, he was the only one who stayed at home and looked after their mother who was now helpless and in a lot of pain from injuries sustained in a motorcycle accident. He further stated that he dropped out of school due to financial challenges.

18. In further mitigation, the Accused stated that he had been a patriotic citizen for a long time and that he had not broken any law before. That while in remand, he was baptized and had undertaken many courses in bible studies.

19. It was the Accused’s mitigation that he was now a changed man and was ready to be a more law abiding citizen than before. He further stated that the deceased’s family had already forgiven him and some clan elders had already asked for forgiveness on his behalf.

20. The Probation Officer’s Report dated July 8, 2022 indicated that the victim’s family was still bitter, hurt and angry over the death of the deceased. They stated that they believed that the offence was committed intentionally and that were assigned by the decision to reduce the charge from murder to manslaughter.

21. The Report stated that the victim’s family were opposed to the Accused’s release on a non custodial sentence for his own security. That the deceased’s brothers were not receptive to his release and that they wanted justice for their brother.

22. The Probation Officer’s Report stated that the area administration could not guarentee the security of the Accused if he was released. That the reconciliation process between the family of the Accused and that of the deceased had not been initiated properly but they (area administration) were willing to re-start the process.

23. The Report stated that the Accused’s family were willing to participate in a reconcilaition process. The Accused’s family pleaded that he be given a non-custodial sentence and vowed to support the Accused to ensure that he does not relapse and reoffend.

24. The Probation Officer’s Report stated that the Accused admitted to comitting the offence and was ready to accept the Sentence of this court. The Report also noted that the Accused had no previous criminal record but he was known to cause disturbance when drunk.

25. The Accused pleaded for mercy as he believed that the offence was not intentional.

26. The Maximum penalty for manslaughter Under Section 205 of the Penal Code is life imprisonment.

27. I have considered the Accused’s mitigation. I have no doubt that he is remorseful and regrets his action. No doubt his family would wish to have him back home on a non-custodial sentence. I have on the other hand considered the Victim Impact Statement. The victims are pained and grieving the loss of their promising young adult whose life was unceremoniously ended by the thoughtless action of the accused. I have also considered the seriousness of the offence. The charge though reduced to manslaughter, is serious and carries a maximum penalty of life imprisonment. It is my view that the loss of life, save in exceptional circumstances, ought to be met with a deterent sentence. A non-custodial sentence cannot in the circumstances of this case be considered deterrent.

28. This Court takes cognizance that the Accused willingly accepted his crime, was remorseful and saved the Court precious judicial time by embracing plea bargaining. I have taken into consideration that the Accused was a young man aged 27. He has prayed for leniency so as not to spent his entire youth in prison. In his regard, I find his prayer for leniency merited.

29. I will factor in the period spent by the Accused in pre-trial custody, as stipulated by Section 333 (2) of the Criminal Procedure Code See Bethwel Wilson Kibor vs Republic (2009) eKLR.

30. The Accused is sentenced to serve ten (10) years imprisonment. The Sentence shall run from September 6, 2020, being the date of his arrest and pre-trial custody.

31. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 9TH DAY OF NOVEMBER, 2022R. LAGAT-KORIRJUDGEJudgment delivered in the presence of the Accused, Mr. Njeru for the State, Mr.Kipngetich holding brief for Ms.Chirchir for the Accused and Kiprotich (Court Assistant)