https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12289

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KABARNET** **CRIMINAL CASE NO. E025’B’ OF 2023** REPUBLIC ………………………………..…………..……..…..PROSECUTION VERSUS EVANS CHEROGONY SIMON.…..……………...………………1ST ACCUSED COLLINS CHEBOR KIBOWEN…………………………………..2ND ACCUSED **JUDGMENT ON PLEA AGREEMENT** 1. Six men Evans Cherogony Simon (Accused 1), Collins Chebor Kibowen (Accused 2), Duncan Kipchumba Cheptumo (Accused 3), Evans Kiprop Komen (Accused 4) and Collins Cheptarus Kipruto (Accused 5) Dismas Kibichi Bargatan (6th accused) were arrested and charged in Kabarnet High court Criminal case No. E025 OF 2023 with for the murder of Mary Cherop contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars were that they murdered her on the 18th day of October,2023 at Katimok forest of Ossen Location in Baringo North Sub-County within Baringo County murdered. 2. On the 28th November,2023 each of them pleaded not guilty to the charge before Hon. Ngetich J. as she then was. 3. Thereafter the matter proceeded to trial and hearing of the prosecution’s case. 4. After the testimony of PW10 on the 3rd October, 2024, Ms. Kogo counsel for **Evans Cherogony Simon (Accused 1), Collins Chebor Kibowen (Accused 2), Duncan Kipchumba Cheptumo (Accused 3), Evans Kiprop Komen (Accused 4) and Collins Cheptarus Kipruto (Accused 5)** informed the court that some of her clients wished to enter negotiations with the prosecution for purposes of plea agreement. She sought 30 days to do so. 5. On the 11th November,2024, the prosecution through Mr. Ratemo informed the court that there had been discussions with the defence and there was to be a plea agreement with the 1st to 5th accused. They sought a date for purposes of drafting the terms of the plea agreement. 6. On the 13th March,2025, the court was informed that a plea agreement had been executed between the state and the two of the accused persons **Evans Cherogony Simon and Collins Chebor Kibowen** where the murder charge was reduced to gang rape c/s 10 of the Sexual Offences Act . 7. The two accused also agreed to give testimony in relation to the events that led to the death of Mary Cherop 8. The charges were separated so that the murder case against Duncan Kipchumba Cheptumo (3rd accused), Evans Kiprop Komen (4th accused), Collins Cheptarus Kipruto (5th accused) and Dismas Kibichi Bargatan (6th accused) would now proceed without those two. 9. For ease of reference the two files became 25A and 25B. 10. The court satisfied itself that each accused person understood his rights under section 137F of the Criminal Procedure Code, and also as signified by each of their signatures on plea agreement. The charge was read to the accused person before Ngetich J as she then was on 13th March 2026. 11. The particulars of the charge were that on the 17th day of October,2023 at unknown time of the night, at Katimok Forest in Baringo North Sub-county within Baringo County jointly with others before court each forcefully and unlawfully caused his penis to penetrate the vagina of Mary Cherop without her consent. Each accused person was convicted on his own plea of guilt for Gang Rape contrary to section 10 of the Sexual Offences Act No.3 of 2006 1. The two pleaded guilty. The facts were presented thus; 2. The prosecution presented the facts of the case that on the 17th October,2023 at around 5:00 P.M, the complainant Mary Cherop left her home for Kabartonjo centre to buy food, nails and school uniform for her grandchild. She left her husband PW 2 at home while promising to return early. She did not return home. 3. Investigations revealed that while at Kabartonjo centre, Mary Cherop went to Kaptumin Bar to drink. In the bar were many people taking alcohol including Evans Cherogony, Collins Chebor Kibowen and Duncan Kipchumba Cheptumo alias Kipsakwa. That it began raining and Evans Cherogony left for Westgate Bar where he met a bodaboda rider known as Livingstone and asked him to take him home however, the boda boda rider was not ready to go home at that time. It was there that he went out of the bar and met Collins Cheptarus Kipruto who hailed from his village. They decided to go home together. On their way, they saw four people ahead being Mary Cherop(deceased-complainant), Duncan Kipsakwa, Collins Chebor and Dismas alias Dis whom they followed. It was dark but street lights were on along the main highway. 4. As they arrived at Moi High school Kabartonjo, they took a short cut through Katimok Forest. At the forest they used their mobile phones for lighting. At some point Dismas Kibichi Bargatan and 3 others stopped. Dismas Kibichi Bargatan ordered Evans Cherogony Simon and Collins Chebor Kibowen to stop and forced them to sit down together with Mary Cherop. Dismas Kibichi Bargatan forcefully ordered the Mary Cherop to lie down and gave a condom to Evans Cherogony Simon and forced him to have sex with Mary Cherop after removing her pant. Dismas Kibichi Bargatan threatened to harm Evans Cherogony Simon if he refused to rape the Mary Cherop , as Evans Cherogony Simon was having sex with her , Collins Chebor Kibowen was holding her legs. 5. After that, Evans Kiprop Komen was forced to have sex with Mary Cherop her. 6. Thereafter Collins Chebor Kibowen was ordered by Dismas Kibichi Bargatan to have sex with the Mary Cherop. He did. 7. Thereafter Duncan Kipchumba Cheptumo was forced by Dismas Kibichi Bargatan to have sex with the Mary Cherop and he did. 8. After that Collins Cheptarus Kipruto was also forced by Dismas Kibichi Bargatan to have sex with Mary Cherop and he did. 9. Mary Cherop was screaming as she was being raped by each of these men. 10. When it was the turn for Dismas Kibichi Bargatan to rape her Mary became hostile. 11. The accused persons had carnal knowledge of the Mary Cherop without her consent 12. After raping Mary Cherop, Evans Cherogony Simon and Collins Chebor Kibowen were ordered to disappear from the scene by Dismas Kibichi Bargatan. They left Duncan Kipchumba Cheptumo, Evans Kiprop Komen, Collins Cheptarus Kipruto and Dismas Kibichi Bargatan at the scene. 13. On the 14th October,2023 in the morning, Mary Cherop was found dead at Katimok Forest. A report of the incident was made at Kabartonjo police station by the Chief together with Mary Cherop’s husband. DCI officers investigated the case, the suspects were arrested and jointly charged with the offence of murder now reduced to that of gang rape in respect of Evans Cherogony Simon and Collins Chebor Kibowen following plea agreement. Their statements under inquiry were produced as PExhibit 1(a) and 1(b) respectively. 14. The accused persons each pleaded that the facts were correct and each was convicted on his own plea of guilt. 15. The court called for a pre-sentence report for each of the accused person and matter was fixed for mitigations. 16. The pre-sentence report for the Evans Cherogony Simon indicates that he is aged 24 years. He attended Bartaragon Primary School where he sat his KCPE examination in the year 2019 and scored 228/500. He later joined Tiriondonin Day Secondary School where he dropped out at form 2 due to school fees problem. He indicated that he related well with his siblings and parents. He is single with no one depending on him and he uses alcohol. This is his first offence. 17. He maintains that one of his co- accused while armed with a panga, threatened him and forced him = to rape the victim that he did the offence while under the influence of alcohol and fear of his own safety 18. The pre-sentence report for Collins Chebor Kibowen indicated that he attended Bartaragon primary school and sat for KCPE in the year 2018. After completing primary school, he did not proceed to secondary school citing lack of school fees. In 2019 he started to work as a herder and other casual jobs up to 2023 when he joined Kapchepkor polytechnic for masonry course. At the point of his arrest the accused was 3 months away from doing his Grade III trade test for masonry. He is single and does not have any children. 19. He too maintained that one of his co-accused while armed with a panga, threatened him and forced him to rape the victim that out of fear for his own safety, he engaged in the offence. 20. He sought a non-custodial sentence. He expressed his regret and remorse for the offence saying it was not his wish but he was coerced into committing the act. He stated that he reached a plea agreement with the ODPP so that he could be a state witness and also to save the court's time. He therefore sought for leniency from the court. 21. The secondary victim's, were the victim's husband, the eldest daughter, victim's mother and her three siblings. The victim was 48 years of age and a mother of six children. 22. The victim's husband and the daughter noted that life had never been the same since their victim passed on. They noted that the victim was the family bread winner and to date meeting their daily needs is a great challenge. They opposed non- custodial sentence noting that the offence was in human and the accused persons were fit to serve custodial sentence. The husband noted that family of Evans Cherogony paid him a visit once with an aim of reconciliation. They promised to return back. 23. The victim's siblings and the mother opposed the accused being admitted into non-custodial sentence noting that they are still in pain and bitter over the death of their kin and the manner in which the offence was committed the accused deserved a custodial sentence. 24. To them they did not believe that the accused were forced to rape the victim in that it was in a forest and they had a right to run away and not commit the offence. They also opposed 7-year sentence proposed by the prosecution counsel and their prayer was that the accused be sentenced in accordance with the law as a warning and deterrence to other youths within the community. 25. Evans Cherogony maintained that he pleaded to the committing the offence as charged but under the influence of alcohol. He sought forgiveness from the victim's family the court. He sought that he be admitted into non- custodial sentence so that he could restart his life afresh. He noted that his family had tried reconciliation with the secondary victims in vain. 26. The village elder and pastor all noted that Evans Cherogony was well known to them. They also stated that the accused is the only one within the family with criminal history which was due to negative peer influence and excessive alcohol use. Evans Cherogony’s family members visited the victim's husband and the victim's parents. They were of the view that he did not deserve community rehabilitation sentence. The pastor appreciated the accused for saying the truth but noted that his safety at the community level is not guaranteed. 27. The probation and after care officer found the accused not suitable for non- custodial sentence 28. Regarding Colins Chebor Kibowen, the husband of the victim stated that he knew him very well given that they are from the same clan and neighborhood. He stated that since the accused had decided to reach a plea agreement and become a state witness, he has no problem if the accused was sentenced to serve a non-custodial sentence but stated the accused would have to move to live in a different location due to the hostility at home. He added that from the facts, he understood that the accused committed the offence under coercion and that his anger towards him has reduced but his elder children were still very angry and hostile towards the accused. 29. The local administration indicated that the community at large was not ready to welcome the accused back home. Most members of the community viewed the offence as bizarre and violent and were not willing to accept the accused back home at the moment. 30. The local administration opposed a non-custodial sentence for the accused as his safety could not be guaranteed. 31. The probation and after care officer found the accused not suitable to a non-custodial sentence. **Mitigation** 1. The matter came up for sentence hearing on the 6th May,2026. Ms. Kosgei counsel representing the prosecution submitted that the two accused persons before court had been charged with murder contrary to section 203 as read with section 204 of the Criminal Procedure Code. That they plea bargained and it was reduced to Gang rape. She submitted that they looked at the evidence and they found that they were forced to commit the gang rape by their co-accused. That the accused agreed to be state witnesses and accepted the agreement. 2. On sentence, she submitted that the Sexual Offences Act provides for mandatory sentence. That under section 3 of the Act the law provides for minimum sentence of 10 years but since sentence is the discretion of the court she suggested 7 years minimum. 3. Ms. Kogo counsel for the accused herein submitted that the accused persons were charged with the offence of murder before they entered into a plea bargain agreement where the offence was reduced to Gang Rape. 4. She submitted that at the time of the offence, they were with the Mary Cherop when they reached the forest and at the time, the accused persons and the Mary Cherop were all drunk and they were forced to commit the offence. That the 4th accused (previously 6th accused) in the murder file forced Mary Cherop to lie down and remove her clothes, he removed a condom, gave the 1st accused and forced him to have intercourse with her . He took a new condom and gave to the 2nd accused and forced him to have intercourse with her. 5. She called upon the court to look at the plea bargain agreement between the accused and the prosecution. She submitted that the accused persons have been in custody since 2023, she sought that the accused be sentenced to 7 years imprisonment as per the agreement and as per the probation officers report and if possible a non-custodial sentence. 6. She stated that the 4th accused had a sword which he used to threaten the accused persons herein if they did not do what he wanted and due to drunkenness, the accused persons herein could not fight/resist the act which they were forced to. She stated that they did not do it voluntarily and thus they were seeking for forgiveness. **Analysis and Determination** 1. The charge the accused persons pleaded to is Gang Rape contrary to Section 10 of the Sexual Offences Act No.3 of 2006. 2. Section 10 of the Sexual offences Act provides that, *“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life*. 1. I have considered the mitigation by the Accused persons I have also considered the social inquiry report. 2. The objectives of sentencing are outlined in the 2023 Judiciary of Kenya Sentencing Policy Guidelines at page 15, paragraph 4.1 as follows: ***Retribution****: To punish the offender for his/her criminal conduct in a just manner.* ***Deterrence****: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.* ***Rehabilitation****: To enable the offender reform from his criminal disposition and become a law-abiding person.* ***Restorative justice****: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.* *Community protection: To protect the community by incapacitating the offender.* *Denunciation: To communicate the community’s condemnation of the criminal conduct.”* 1. In **Okoth & 2 others v Republic [2026] KEHC 2887 (KLR),** the accused persons were sentenced to 15 years imprisonment for the offence of Gang rape by the trial court. On appeal, Hon. M.D Kizito J. upheld the sentence of 15 years imprisonment. 2. In **Juma & another v Republic [2023] KEHC 20449 (KLR),** the accused persons were convicted by the trial court on both main counts of gang rape, and assault causing actual bodily harm and sentenced to thirty (30) years imprisonment each for gang rape, and five (5) years imprisonment for assault causing actual bodily harm, sentences to run concurrently. On appeal, Dulu J. dismissed the appeals against conviction. With regard to sentence, he set aside the sentence of thirty (30) years imprisonment for gang rape, and substituted with twenty (20) years imprisonment for gang rape. The court upheld the five (5) years imprisonment for assault causing actual bodily harm 3. The prosecution has proposed a sentence of 7 years imprisonment for each accused person. The defence on their part are seeking for a non-custodial sentence if possible and if not, they are agreeable to the prosecution’s proposal of 7 years imprisonment. 4. The law provides for a minimum sentence of 15 years imprisonment which can be enhanced to life imprisonment. 5. This was clearly stated in the plea agreement hence at the outset they were aware that they would serve at least 15 years imprisonment. 6. I must say I do not understand where PACs got the idea that every time the court seeks a PSR the issue is whether or not the accused person can serve a non-custodial sentence. It is a report that according the act, will aid in the administration of justice. Hence, the idea should never be that the parties are to be interviewed as to whether the offender will benefit from a non- custodial 7. In any event minimum sentences in Sexual Offences were not affected by the Muruatetu case. 8. The Supreme Court on 12th July 2024 in [Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng%402024-07-12) *We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reverse.* 1. The accused persons participated in a heinous activity. Raping Mary Cherop in turns. 2. While it may be difficult to envisage a man being forced to rape a woman, this has been studied and it is possible. However, in determining the sentence, the question is whether the accused persons could have done anything else in the circumstances. 3. The accused did not say anything afterwards. It is possible that they were aware that what they had done was wrong. The plea agreement and their admission that they did this thing cannot be easy as the prosecution accepted that they too were victims of the same coercion incident as they too had not consented to the same. I believe that is why the prosecution is seeking a lenient sentence. 4. However, the law is the law. 5. *Waswahili husema majuto ni mjukuu*. That is the position of the accused persons. It was a dark night. May be they could have taken off in the dark and raised alarm. But maybe as they say they were too drunk to do that. The certainty is that they have accepted their participation at a high risk. 6. Taking into consideration all the aspects of the case this is not a case suitable for a non-custodial sentence. The accused persons will serve a custodial sentence. 7. The accused persons first appeared in court on the **7th November, 2023,** they have been in custody since then. 8. Section 333(2) of the Criminal Procedure Code provides as follows: *“333(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.* *Provided that where the person sentenced under subsection* 1. *has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”* 2. In the circumstances each accused is sentenced to 15 years’ imprisonment with effect from 7th November 2023. **Judgment** dated, signed and delivered virtually at Kabarnet High Court on 31st July 2026. **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- CA Momanyi/Gladys Accused-1 present Accused -2 present Ms. Kogo for the accused Mr Koech for State