https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6378

Republic v Toroitich (Criminal Case 31 of 2023) [2026] KEHC 6378 (KLR) (8 May 2026) (Sentence) Neutral citation: [2026] KEHC 6378 (KLR) Republic of Kenya In the High Court at Iten Criminal Case 31 of 2023 JRA Wananda, J May 8, 2026 Between Republic Prosecution and Benjamin Kipcherem Toroitich Accused Sentence 1.The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on 6/09/2020 at around 1100 hours, at Kamalei B village, Kapyego Location, Marakwet East sub-County within Elgeyo Marakwet County, he murdered one Kimoi Jemecho Rutto, his own elderly mother. 2.Mr. Oduor represents the accused as the pro bono Advocate, while Ms. Mwangi is the Prosecution Counsel currently appearing for the State. 3.The accused was arraigned on 29/09/2020 but progress of the matter was delayed for a long time due to concerns over the accused person’s mental status, which resulted into the carrying out of mental assessment and re-assessment tests on several occasions. Eventually however, after the accused was given a clean bill of health and certified fit to plead, the parties entered into plea bargain discussions which then culminated to the plea bargain Agreement dated 16/10/2025, 5 years after the accused was arraigned, and which Agreement indicated that the accused had agreed to plead guilty to the reduced lesser charge of manslaughter, and to let the Court then determine the sentence. 4.The matter then came up for plea bargain hearing on the same 16/10/2025. The accused was sworn on oath, and after examining him, I recorded my satisfaction that Section 137F-137G of the Criminal Procedure Act, governing the plea bargain process had been complied with, that the accused had signed the agreement together with his Counsel, voluntarily, and without any coercion, and that he fully understood the effect thereof. I thus allowed the accused to take a fresh plea, now on the fresh charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code, which he did, and upon which he then pleaded guilty. The statement of facts of the case (factual basis) was then read out to the accused. The same was basically as follows:“On 6/09/2020 at around midnight, the deceased was at home with the accused person when a quarrel ensued between the two over unknown issues. The accused person then armed himself with a jembe stick, which he used to assault the deceased on the head several times. The deceased shouted for help. 3 neighbours responded to the distress call and found the accused still assaulting the deceased. The accused was arrested by members of the public who wanted to lynch him, but was locked in by a relative by the name Brian in the family house, and was later handed over to the Kapyego police, who were called to the scene. The deceased was taken to Kapyego Health Centre where she was later referred to the Moi Teaching and Referral Hospital (MTRH) at Eldoret, where shew succumbed to the injuries. The body of the deceased was taken to MTRH mortuary for preservation and autopsy. The post-mortem was conducted on 11/09/2020 where the doctor opined that the cause of death was due to head injury, which caused intracranial and subdural haemorrhages. The accused was charged with ther offence of murder contrary to Section 203 as read with Section 204 of the Penal Code which has now been reduced to manslaughter contrary to Section 202 as read with Section 205 of the Penal Code pursuant to this plea bargain agreement” 5.Prosecution Counsel then produced the post-mortem Report dated 11/09/2020, and also the Jembe Stick referred to above, as exhibits. 6.When asked to confirm or refute or comment on the correctness of the facts as read out, the accused confirmed the same as being correct and true. Satisfied that the statement of facts read out disclosed sufficient factual basis for the charge, this Court accordingly convicted the accused on the offence of manslaughter on his own plea of guilty. 7.Regarding the sentence to be meted out, Ms. Mwangi informed the Court that there were no previous criminal records relating to the accused hence he could be treated as a first offender. 8.On his part, Mr. Oduor, in mitigating on his client’s behalf, submitted that the accused is remorseful and regrets the demise of the deceased, and that he has reached out to the family and asked for forgiveness. He also pointed out that by entering into the plea bargain, the accused had saved judicial time, an also observed that the accused was not fully mentally fit at the time he committed the act which situation resulted into deferring of the plea-taking for a long time. He submitted further that the accused is currently 42 years, old having born in 1983, and he prayed for leniency. 9.I then directed that a pre-sentence Report be prepared and filed, which was done. The Report, dated 31/10//2025, prepared by the Probation & Aftercare Service (Elgeyo Marakwet County Office) is indicated to have been compiled after a review of the Court file, and upon interviews with, inter alia, the accused, his family, and the local administration, and the community at large. Determination 10.The applicable law on sentencing for the offence of manslaughter is Section 205 of the Penal Code which provides as follows:“Any person who commits the felony of manslaughter is liable to imprisonment for life” 11.In determining the appropriate sentence to impose, I take into account the Supreme Court decision in the the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR) in which it guided that, in sentencing, the following mitigating factors would be applicable; (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; and, (h) any other factor that the Court considers relevant. 12.Similarly, the Court of Appeal, in the case of Daniel Kipkosgei Letting Vs. Republic [2021] eKLR, pronounced as follows;“With regard to the above, we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..” 13.Further, Majanja J, in quoting Francis Karioko Muruatetu (supra), in the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, stated as follows:“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………………………” 14.With the above guidelines in mind, I have considered the manner in which the offence was committed, the circumstances whereof are that the accused and his mother were together in the house when, for reasons which are not clear, the accused picked a jembe stick and bludgeoned his mother to death. I say so because according to the statement of facts read out, which the accused confirmed as correct, it is simply stated that the attack on the deceased was preceded by a quarrel that ensued between the two while they were together at home. 15.I have also considered the contents, findings and recommendations of the Pre-sentence Report. The salient observations I make therefrom are that the accused has had a history of alcohol use. and also a history of mental health instability. It is alluded that he may have been under such influence of alcohol, and may also have not been mentally stable at the time when he committed the act. No history of previous criminal behaviour was however uncovered. He is said to be a husband of 2 wives with 9 children, the older ones in secondary school and the younger ones still in primary school. The Report also reveals that although his relatives have since moved on given the lapse of time since the incident occurred and cleansing rituals that were performed in relation to the killing, they are not ready to receive the accused back fearing that he might relapse to his previous mental condition and cause more harm. None of the relatives is also said to be ready to take up the responsibility of catering for his medical expenses. In the end, the Report remarks about the accused that “his close family members who are crucial psycho-social support system in his rehabilitation are not receptive at the moment”, and that “in view of the presented sentiments and the current home environment, it is our opinion that he is not suitable for a community based supervision and rehabilitation”. It then proceeds to recommend that “the Court deals with him in a manner deemed appropriate.” 16.Be the above as it may, my own observation is that the accused is clearly remorseful for his actions which he obviously took out of anger, and perhaps influenced also by his then unstable mental condition, which was worsened by his having consumed alcohol. Whatever the circumstances, he clearly went overboard. I also take into account the fact that he entered into the plea bargain agreement, and thus pleaded guilty to the lesser charge of manslaughter, and in the process, saving precious judicial time. 17.The above are no doubt, mitigating factors which ought to have a bearing on the sentence to be imposed. 18.There are however also notable aggravating circumstances. For instance, the post mortem report paints a grim picture of a vicious and violent attack as indicated by the severe injuries suffered by the deceased. The report describes the cause of death as “head injury which caused intracranial and subdural dural haemorrhages”. It also reveals that the “head injury was caused by bang hit on the head by a blunt object”. According to the statement of facts read out, when neighbours responded after hearing screams from the deceased, they found the accused still hitting the deceased continuously on the head. Looking at the circumstances of the case, the accused clearly used unjustifiable and unnecessarily excessive force in assaulting the deceased. Through his needless, brutal and rash action, a human life (his own mother’s) was lost and the Court must reiterate that it is not acceptable to take a human life extra-judicially, whatever the circumstances or level of provocation. 19.The elephant in the room, is however the issue of the accused person’s mental state at the time that he committed the killing, and even at present. This is because in Kenya, if a person is believed to have been mentally unstable at the time that he committed the act of murder, the legal process shifts from standard criminal punishment towards medical evaluation and specialized detention. To this end, Section 12 of the Penal Code provides as follows:“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.” 20.The burden of proof however lies with the defence to demonstrate that the accused person was of unsound mind at the exact time of the offence. If the Court finds that the accused person was mentally unstable at the time of committing the act, then it may issue a special finding of "guilty but insane", also referred to in recent Court decision, as "not guilty by reason of insanity". Historically, Section 166 of the Criminal Procedure Code would then be invoked to order that such individuals be detained "at the President's pleasure" in a mental hospital or prison. The current jurisprudence however is that constitutionally, the President has no role in this process, and that only the Judiciary possesses the mandate of determining the terms of detention. This was affirmed by the Court of Appeal in the case of Akide v Republic (Criminal Appeal 39 of 2021) [2024] KECA 1176 (KLR) (20 September 2024) (Judgment)). 21.Although, in this case, there is indication that the accused person has had a history of mental health challenges, there is no clear evidence that he was, at the time that he committed the killing, indeed suffering from any such mental sickness. Furrher, although, as aforesaid, the burden of proof to demonstrate that the accused was of unsound mind at the time of the offence, Section 12 of the Penal Code was never invoked by the defence at any stage of the case. The accused, after being certified by a qualified psychiatrist to be fit to plead, has now proceeded to enter into a plea bargain agreement and pleaded guilty to the reduced charge of manslaughter. He has therefore now been already convicted. There may therefore be no longer recourse to Section 12 of the Penal Code as the case is now before me for sentencing. 22.I cannot however ignore the fact that the very first Mental Assessment conducted on the accused on 20/09/2020 after the incident, only about a fortnight later, returned the verdict that the accused had a history of mental ill-health as he was “schizophrenic”, and was therefore not fit to plead. In doing so, the Report contained the following remarks:“The patient has perceptual disturbances and the interaction was difficult. He defaulted treatment two years ago at Iten County Referral Hospital” 23.The Report then made the recommendation that:“He needs urgent treatment because he is mentally unstable” 24.The accused person’s mental instability as described above was then reiterated in the several further Mental Assessment Reports submitted before Court. There is therefore overwhelming indication that the accused was indeed mentally sick at the time when he committed the killing. 25.In the case of Akide v Republic (supra), the Court of Appeal’s final holding and orders were as follows:“46......... As regards the sentence, we find that it would be a misnomer to "sentence" a person found not guilty. We agree with the opinion of Kiarie Waweru Kiarie, J. in the case of Hassan Hussein Yusuf v Republic (supra) and hereby direct that:a.the appellant shall, as soon as practicable and within 7 days from the date hereof, be subjected to mental examination by a psychiatrist at Malindi General Hospital or at any other recognized medical facility to determine whether he poses danger to the public or to himself, and that in the event of a finding that he no longer poses such danger, be set at liberty forthwith unless otherwise lawfully held.b.should the psychiatrist be of the view that the appellant requires further treatment, he shall be admitted for treatment at a mental health facility recommended by the psychiatrist until such time as it will be safe to release him.c.in the event that any further directions are required to implement this order, the parties shall be at liberty to seek further orders from the High Court.” 26.The above reasoning has since been followed and applied in several subsequent cases, such as by Muteti J in the case of Wambugu v Director of Public Prosecutions (Criminal Miscellaneous Application E304 of 2023) [2025] KEHC 1284 (KLR) (Crim) (17 February 2025) (Ruling). In the said case, Muteti J made the following further remarks:“38.The Mental Health Amendment Act 2022 introduced Section 2B into the Mental Health Act Cap 248 which section places a duty on persons who come into contact with persons suffering from Mental diseases. The section provides;- ...............................................................................................................................................................................................................39.The duty is on all persons in the performance of their duties thus the prosecutors and courts alike must give effect to this provision by ensuring that at the earliest opportunity persons afflicted by a disease of the mind are not put on trial when they should be diverted to mental care institutions for purposes of care, protection and treatment.40.The applicant in this case was tried and fund guilty but insane. The applicant seeks to have this court revisit the decision and make orders that mirror the present jurisprudence in the handling of accused persons with mental issues.41.No doubt there was psychiatric evidence that at the time of the commission of the offence the applicant was suffering from postpartum psychosis which deprived her of the necessary mens rea to commit the offence. As such therefore this upon receipt of this application called for a medical report which was availed and from the report it is clear that she is now mentally fit.42.The court must now determine the best course to take in respect of the applicant considering her present mental condition in line with the decisions o the courts in respect mental challenged persons. The prison certainly is not her place taking into account the fact that Section 2B of the Mental Health (Amendment Act) 2022 came into force long after she had been convicted and sentenced.43.This court must give effect to the guiding principles of the Act since parliament intended that we must henceforth deal with persons who suffer mental disability in this country in a more humane and caring manner that guarantees their equal treatment and fosters the thinking that there must be a paradigm shift in the manner we deal with mentally disabled persons. In view of this, this court finds that the special finding that the judge made in 2018 in respect of the applicant cannot stand in light of the recent jurisprudential developments in this country. The same is hereby set a side since this court cannot reverse the conviction, the only recourse open to this court would be to make an order that would best serve the interests of justice in the circumstances. The applicant shall be escorted to a Psychiatrist for a final report to determine whether the applicant is fit for release back to the society or should be committed to a mental institution for further treatment and care. The report shall be filed with this court within 7 days from the date of this Ruling and this court, shall upon examination of the same, issue an appropriate order in respect of the applicant.44.It is important for the court to propose some initiatives that this court believes can go along way in alleviating the current problem in the handling of cases involving persons suffering a disease of the mind and are held in prison. In the Union of India, the Courts have had to deal with this issue and as result several measures were taken and recommended by the courts to address the challenge.45.In the decision reported in (2019) 7SCC 1 (Accused X vs. State of Maharastra), the Hon'ble Supreme Court had held that the aspiration of the aforesaid Act( read the mental health care Act) is to provide mental healthcare facility for those who are in need including prisoners and that the State governments are obliged under Section 103 of the Act to set up a mental health establishment in the medical wing of at least one prison in each State and Union Territory so that prisoners with mental illness may ordinarily be referred to and cared for in the said mental health establishment.46.The proposal of the Supreme court of India is noble in addressing the numerous cases we currently have in our prison facilities. The Prison authorities in conjunction with the County Governments must identify facilities within the counties to assist in the management and care of persons.Section 2D of the Mental Health Act provides;- The County governments shalla.provide mental health care, treatment and rehabilitation services within the county health facilities, in particular ensure that level 2, 3, 4 and 5 county health facilities set aside dedicated clinics to offer outpatient services for persons with mental illness;It is in recognition of that duty that this court observes that there is need for a deliberate effort to be made by the Commissioner General of Prisons to engage County Governments across the country to have the services provide to alleviate the current situation where accused persons have to be kept for months before the taking of plea awaiting mental assessment reports. The courts will therefore be able to commit persons afflicted by diseases of the mind to such facilities for treatment, management and care as opposed to the outdated special finding orders under Section 166 of the Criminal Procedure Code.47.Finally, the police must also be vigilant at the time of arrest and take proactive steps to avoid having persons who are mentally ill put on trial and prison custody when they should ideally be in rehabilitative mental institutions. In D.K. Basu vs. State of West Bengal (1997) 1SCC 416, it was directed that the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The police are also under an obligation to notify the next friend or relative of the arrestee if they live outside the district or town. Such intimation must be given within a period of eight to twelve hours after the arrest. The arrestee should be medically examined.” 27.I am constrained, in the circumstances, to adopt the same reasoning as Muteti J’s. Final Orders 28.In circumstances, I order and/or give directions as follows:i. The accused person shall, as soon as practicable and in any event, within 14 days from the date hereof, be subjected to a mental examination by a Psychiatrist at the Moi Teaching and Referral Hospital (MTRH) at Eldoret, who shall then prepare a Report and file it in Court within 30 days advising whether the accused person poses danger to the public or to himself if released, or whether he requires further treatment and/or confinement to a mental institution and the logistics thereof, and/or generally give any other or further professional opinion or advice to the Court on how best to handle the accused person.ii. Implementation of the above order shall be overseen, directed and/or executed by the Officer-in-Charge of the Moi Teaching and Referral Hospital (MTRH) at Eldoret upon whom service of this Order shall be immediately caused by the Prosecution Counsel handling this matter at the Office of the Director of Public Prosecutions (ODPP) at Iten.iii. Once the Report has been filed, the Court shall be at liberty to make any further orders or give appropriate directions as it may deem fit in the circumstances including, but not limited to whether to release the accused person with or without conditions, or whether to order for his confinement to a mental institution for treatment and/or observation, or even whether to commit him to prison with appropriate directions. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 8TH DAY OF MAY 2026……………….……..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Ms. Muriithi for the StateN/A for the Accused personN/A for Advocate for the accused personCourt Assistant: Brian Kimathi