[2023] KEHC 23778 (KLR)

Republic v Too (Criminal Case E007 of 2022) [2023] KEHC 23778 (KLR) (19 October 2023) (Sentence)

Neutral citation: [2023] KEHC 23778 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case E007 of 2022

JK Sergon, J

October 19, 2023

Between

Republic

Prosecutor

and

Fridah Chelangat Too

Accused

Sentence

1. Fridah Chelangat Too 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 Code Cap 63 Laws of Kenya. The particulars of the offence are that on 5th April, 2022 at Kapsoit Centre, in Belgut East Sub-County within Kericho County, the Accused unlawfully killed Cornelius Kipkorir Bii alias Cornie.

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. Sang Learned Counsel for the Accused, submitted that the Accused is aged twenty three (23) and was running a small business at Kapsoit Centre. He submitted that the accused was remorseful for commission of the offence and regrets the demise of the deceased as they had a long love relationship of over six (6) years, they had been cohabiting, had sired a child who was now aged four (4) years and had a business that they both operated. He submitted that the accused regretted the circumstances that led to the demise of the deceased and maintained that the death was not intentional rather it happened as a result of self-defense as the deceased had become verbally aggressive prompting the accused to act in self-defense. He further submitted that both families had held re - conciliatory meetings and that the accused was out on bond and was able to reintegrate well with the community. He therefore urged the court to exercise leniency and consider a non-custodial sentence. He reiterated that the accused being the only surviving parent for her four year old son, should be given a non-custodial sentence to enable her to take care of her son.

4. Mr. Musyoki Learned Assistant Director of Public Prosecutions pointed out that from the facts of this case the accused had attacked the deceased unprovoked and that her illegal and /or unlawful act led to the demise of the deceased. He contended that the accused had used a lethal weapon on the deceased's neck and she fled after stabbing the deceased. Finally, he submitted that a custodial sentence was appropriate in the circumstances.

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 on 20th September, 2023. In the aforesaid report it is noted that the accused dropped out of school while in form three on account of lack of school fees, after dropping out of school she started an affair with Cornelius Kipkorir Bii, the deceased herein and that they sired a child together now aged four who was attending pre-school at ACK Holy Trinity School. The accused was operating a food vending kiosk at Kapsoit Trading Centre prior to her arrest. On the material day of the offence the deceased went to where the offender was operating the food kiosk to make an inquiry on why the accused had harassed one of the bar maids working for him, instead of resolving the issue amicably, it was reported that he accused who was chopping potato chips got agitated and stabbed the deceased with the knife she was using to chop potatoes, the deceased bled profusely and was rushed to Siloam Hospital in Kericho Town for treatment but succumbed to the said injuries, the offender was subsequently arrested and charged with the instant offence.

6. The family of the offender regretted the circumstances under which the offender cut short the life of the deceased. They stated that she got into the relationship when she was too young and attributed her irresponsible behaviour to lack of maturity and naivety. They were praying that she be considered for a non-custodial sentence so as to enable her to take care of the child she sired with the deceased and they were willing to pursue reconciliation with the deceased's clan members because the cleansing rites had already been done.

7. The family of the deceased, particularly the mother to the deceased was bitter towards the offender, she stated that she had taken part in the cleansing ceremony between the two clans that is Kapsoitich (the offender's clan) and the Kapkenyokorek (the deceased's clan), which are a mandatory rite as per the Kipsisgis culture/tradition, however, she maintained that she had not fully healed from what transpired. She stated that the deceased was the last born in a family of three siblings and would take care of his widowed mother, he was the pillar of the family and used to manage the family businesses hence she feels that she was robbed off a very resourceful person at a very tender age. She stated that the deceased was industrious, he was in the process of building his own house (he was at the roofing stage) which house would eventually be occupied by the offender and their son. She was therefore seeking for justice in the matter and therefore opposed to the offender's release on a non-custodial sentence.

8. However, the chairman of the deceased's clan had a different perspective, he said that since the offender had sired a child with the deceased, he felt that the already initiated reconciliation efforts should be allowed to continue to avert future generational curses.

9. The local administrator namely the Area Assistant Chief of Kapkitony Sub-Location Mr. Gideon Kipkorir stated that the two families should pursue the already initiated reconciliation process to its conclusion, given the fact that the offender and the deceased had a child together, however, left the matter for this court to mete out an appropriate sentence.

10. The county probation officer while taking cognizance of the circumstances of this case urged the court to mete out an appropriate sentence as it deemed fit. The county probation officer therefore left the matter for this court's discretion.

11. 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.

12. I have considered that the accused was arraigned and remanded on 20th April, 2022, she was in custody for a period of ten (10) months then was subsequently released on bond on 15th February, 2023.

13. 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.

14. Consequently, I hereby sentence the Accused namely: Fridah Chelangat Too to serve on Probation for three (3) years under the supervision of the County Probation Officer, Kericho County.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 19TH DAY OF OCTOBER, 2023. …………….J. K. SERGONJUDGEIn the presence of:C/Assistant – RutohS/Counsel – Mr. MusyokiKiletyen holding brief for Sang for the AccusedAccused – Present in Person