[2022] KEHC 1700 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NUMBER 52 OF 2018

REPUBLIC.................................................................................................................ODPP

VERSUS

SIMON KIPROP TARUS..........................................................................1ST ACCUSED

JOHN BETT RONO.................................................................................2ND ACCUSED

S E N T E N C E – R U L I N G

The two (2) accused persons Simon Kiprop Tarus and John Bett Rono were charged jointly with Murder; That on 18th November 2018 at Masaito Village Mwahe Nyota Sub-Location, Nyota Location, Kuresoi North Sub – County, Nakuru County they jointly murdered Harun Kipkorir Birir.

They appeared in court on 27th November 2018. Plea was taken on 13th December 2018 and each pleaded not guilty.

On 7th March 2019 the record shows that Ms. Ayuma for the accused persons reported that the defence had proposed a Plea Agreement. On 30th January 2020, the 1st accused person was said to have abandoned the Plea Agreement and counsel sought that he be assigned different counsel. Ms. Mwangi began to appear for 1st accused, and Mr. Yogo for 2nd accused.

On 23rd November 2021, the case against the 2nd accused proceeded for hearing as the 1st accused was now fully pursuing the Plea Agreement pursuant to 137A of the Criminal Procedure Code which states Plea agreement negotiation;

“(1) Subject to section 137B, a prosecutor and an accused person or his representative may negotiate and enter into an agreement in respect of—

(a) reduction of a charge to a lesser included offence;

(b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges.”

We heard four (4) witnesses for the prosecution and the prosecution got a last adjournment to call the remaining witnesses.

On 2nd February 2022 Ms. Murunga for the state told the court that if a Plea Agreement was entered with the 1st accused, they would enter a nolle prosequi in favour of the 2nd accused.

On 15th February 2022 the court was informed that the prosecution and the defence had entered into a Plea Agreement in which the 1st accused agreed to plead to the lesser charge of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.Simon Kiprop Tarus pleaded guilty to the charge of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.That on 18th November 2018 at Masaito Village, Mwahe Nyota Sub-Location, Nyota Location, Kuresoi North Sub – County, Nakuru County he unlawfully caused the death of Harun Kipkorir Birir.

He also pleaded guilty to the facts which the prosecution set out thus; On 18th November 2018 at around 4. 30 p.m. at Mwahe Village, the 1st accused person went for drinking at home of the deceased. On reaching there, he bought one glass of chang’aa worthy twenty (20/=) shillings and drunk it. He wanted to leave, so he removed a five hundred (500/=) shillings note from his pocket in order to pay for the drink but the deceased appeared not to be having the balance. He returned the Kshs. 500/= note in his pocket and asked for 20 bob from a friend who was also drinking. The friend lend him the 20 shillings and he paid for the drink. However before leaving the deceased asked him for tobacco so that he could sniff as the accused was having some. The accused declined and this angered the deceased. The deceased then forcefully took the 500 shillings note from the accused person’s pocket and refused to return it to him. The 2nd accused person at this time had also arrived at the place for a drink but was waiting for the two to sort out their issues before he could settle down to drink, however he did not settle down as the 1st accused immediately left the place rushing home and the deceased started chasing the 2nd accused person after telling him to return the money to the owner. He chased the 2nd accused person caught up with him and threw him down and they began fighting. While on the ground, the first accused person saw them because it was near the gate, the 1st accused then armed with a knife rushed to try and separate the two. The deceased was on top of the 2nd accused person. The 1st accused stabbed the deceased at the back, he also slapped the deceased and separated the two. At this time women were screaming and members of the public came to their rescue. They took the deceased to hospital at Molo, where he was referred to Provincial General Hospital (PGH). On arrival at PGH, the deceased was pronounced dead. Villagers then arrested the two accused persons and took them to police station. Later a post mortem was conducted and the cause of death was due to a collapsed left lung due to penetrating stab wound at the back. The 1st accused was then formally charged with the offence of murder which the prosecution substituted with the offence of manslaughter

He was convicted on his own plea of guilt.

In mitigation, Mr. Murunga for 1st accused submitted;

“The accused person is very remorseful. He has saved court’s time by the Plea Bargain Agreement. The accused is a family man, he has children and a wife. The circumstances of the death, accused 1 was in the process of saving his co-worker, (Accused 2). Even when deceased took 500 from accused 1, he did not fight back. He went home. He is peaceful man. He only came back to help his friend. He has been in custody since November 2018. He has been engaging in training in various courses, it will help him when he leaves prison. While in custody he has managed to engage family of deceased. They came to court. They have reconciled. They are ready to welcome him back. They went to DPP, expressed willingness to accept him back. He is suitable for non-custodial sentence we propose three years’ non-custodial sentence.”

The prosecution proposed ten (10) years imprisonment.

I sought a Pre-Sentence Report. The Probation and After Care Services officer established that the victim’s family and the community had accepted the circumstances under which the offence was committed amounted to provocation of the accused. The Probation and After Care Services officer made the following conclusion;

“… it’s established that the accused killed the victim when they were drinking local brews in the victim’s homestead. Difference erupted spontaneously and ended up fatally.

Our social inquiry was able to establish that the accused has strong social support system. The only child to the accused person as earlier stated is with the accused’s mother. The family seems to have healed emotionally over time. … victim family members opine that they want the matter rest at this point, conduct cultural rites to cleanse the accused and readmit him back into their fold. They are looking to this Court to mete out justice by considering extreme provocation accused person was subjected to and could take kindly any sentence court may deem lenient.

Due to the aforementioned the Probation department’s view is that as things stand, a non-custodial sentence might suffice at the moment as the situation on the ground is not hostile and all parties involved look forward for his eventual release.

We therefore ask court to consider non-custodial sentence by way of probation service order. In the same breath I recommend him for probation service order for a period of three years. During this period will endeavor to reconnect him with his family and entire community for his eventual reintegration.”

On 1st March 2022 the state entered a NOLLE PROSEQUI with respect to 2nd accused, JOHN BETT RONO. The accused and his counsel did not have any objection to the nolle prosequi.

Pursuant to theNOLLE PROSEQUI John Bett Rono be and is hereby is DISCHARGED accordingly. He is to be set at liberty forth with unless otherwise legally held.

With respect to 1st accused, I have carefully considered the circumstances of the offence, the accused’s mitigation, the views of the secondary victims and the community as expressed in the Social Inquiry Report, and the period the accused person has been in custody, from 27th November 2018.

The state recommends ten (10) years imprisonment. I take into consideration that the 1st accused person has been in custody for four (4) years as the Court is bound to take into consideration the period already spent in custody as required by Section 333(2) of the Criminal Procedure Code which states;

“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.”

It is my considered view that in the circumstances of this offence the four (4) years are sufficient custodial sentence. He has served his custodial sentence the four (4) years spent in prison custody are sufficient punishment, and the recommended custodial sentence by the state is already taken care of.

Now the 1st accused requires reintegration back into the society. His wife left and went back to her family leaving behind the five (5) month old baby in custody of the 1st accused’s mother, he has to take care of his child.

The Probation Supervision Order proposed by the accused and the Probation and After Care Services is suitable for this purpose.

It is therefore the order of this court that the SIMON KIPROP TARUS is sentenced to PROBATION SUPERVISION FOR THREE (3) YEARS.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MARCH, 2022

MUMBUA T MATHEKA

JUDGE

In the presence of;

C/A Edna

For state: Ms. Murunga

For 1st accused: Mr.Murunga

2nd accused: Mr. Yogo