[2017] KEHC 2580 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCRC NO 38 OF 2017

(FORMERLY ELDORET HCCR NO. 25 OF 2016)

REPUBLIC……………………………………………………...…………..PROSECUTOR

VERSUS

WILLIAM KIBET KIPCHUMBA ………………………………………………..ACCUSED

JUDGMENT

1. The is a judgment of the Court following a plea of guilty to a reduced charge of manslaughter after plea bargain agreement which the court approved following the presentation of the factual basis of the agreement as accused’s lack of intention to kill the deceased in the circumstances of a fight between the two. The accused was originally charged with murder contrary to section 203 as read with section 204 of the Penal Code.

2. The facts of the case as set out by the DPP and accepted by the accused were as follows:

“FACTS

7. On 20. 03. 2016, the deceased, his wife and one David Kibet Chepkirua were on their way home when the accused joined them from a feeder road and they all started walking home together. The said David was walking ahead as the accused and the deceased walked behind. The said David Kibet Chepkirua was holding his panga as they walked home. Suddenly a fight ensued between the deceased and the Accused. The said David Kibet Chepkirua ran towards the two as he dropped the panga he was holding and started separating them. The accused rushed and picked up the panga that had been dropped on the ground by the said David Kibet Chepkirua and charged towards the deceased. The Accused cut the deceased on the left side of his neck. He threw down the panga and ran away leaving his shoes behind. The deceased’s wife screamed and members of the public and also administration police officers responded. They found the deceased already dead. The deceased’s body was collected and taken to Baringo County Referral Hospital. On 21. 03. 2016, members of the public arrested the Accused and took him to Fluorspar (Cheptei) Patrol Base and he was later transferred to Kabarnet Police Station. The postmortem was conducted on 24. 03. 2016 at Baringo County Referral Hospital and the doctor found a deep cut on the left mid-neck penetrating to the cervical vertebra and a lacerated left external carotid. He formed the opinion that the cause of death was hemorrhagic shock secondary to assault with sharp object with cervical cord injury. The investigating officer filled the exhibit memo form and forwarded the panga to the government chemist for analysis.

The accused was taken to court and charged with the offence of murder which has now been reduced to manslaughter. The accused person was thereafter presented before the doctor at Kabarnet District hospital for mental assessment who confirmed he was mentally fit to stand trial.”

3. Upon the accused’s acceptance of the facts, and noting the confirmation of the accused’s mental status as fit to plead, the court convicted the accused for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. What remains to be determined is the appropriate sentence for the offence.

4. In mitigation, counsel for the accused urged that the accused was remorseful for the act which he had not intended but only acted in self defence following a fight with the deceased and the accused had died from a single cut with a panga which he took from one David Kibet who had tried to separate them. He pleaded that the accused was a first born of 6 boys whose last born was still in school and the accused was paying his school fees, and that he had 2 wives and five children for whom he was required to provide. He also pointed out that the accused had been in custody for a period of 18 months since 28th March 2016, and consequently urged a non-custodial sentence.

5. A pre-sentence report ordered by the Court was negative for non-custodial sentence, concluding as follows:

“CONCLUSION

Your lordship, the social inquiry reveals that the accused got separated with the first wife but the children are under the custody of his parents. The accused second wife is still at her parental home and takes care of the accused two children. The family practice mixed farming.

Furthermore the home report gathered reveals the accused and the deceased families are related but the relationship is no longer cordial after the incident. The local administration and his immediate family gave positive report about his past character.

They have no objection if the accused is ordered to serve non-custodial sentence but bitterness, anger and hostility was expressed by the victim’s family. They strongly opposed non-custodial sentence and are not ready for reconciliation since the memory of the loss of their loved is still fresh.

RECOMMENDATION

Your lordship, given that animosity and hostility still exists between the accused and victim’s family. Non-custodial sentence seems inappropriate. We therefore recommend the accused to be dealt with otherwise. However, this subject to court discretion.”

Non-custodial sentence away from place of killing

6. Faced with the negative Pre-sentence Report by the Probation Officer, Counsel for the accused, Mr. Chepng’oswo, urged the Court to grant a non-custodial sentence as the accused had alternative residence at Narok away from the place where the killing occurred at Elgeyo Marakwet. With respect, Counsel’s submission misses the point, for unlike in a bail application where courts sometimes grant bail and direct that the accused shall not visit the area of the offence, a sentence comes after a conviction on a finding of guilty whether by full trial or on own plea. The accused is now a convict and not a suspect as with the case of bail.

7. A sentence must reflect the society’s revulsion with the convict’s conduct, and therefore in addition to reforming the offender through deterrence, the society and the victim particularly are entitled to seek reparation and retributive justice. Hence, the requirements, for instance, for the provisions for victim impact statements in sentencing, and for consultation with the victim in plea bargain.

8. As I held recently in Kabarnet HCCRC No. 58 of 2017 (Formerly Eldoret HCCRC No. 80 of 2016) Republic v. Gilbert Kipkorir Koech, minimalist retributivism, where punishment is given where it is deserved and consideration is given to societal goals of rehabilitation and deterrence, is to be preferred to the classical form of retributivism:

9. “I consider that a custodial sentence will serve minimalist retributivism, where the sentence while meting out just punishment to the accused for his wrong doing, also permits his rehabilitation to appropriate social behaviour as a young man with full life ahead and at the same time deter other potential offenders. The sentence of imprisonment should be such as to permit the accused to resume his college studies after serving his due time.

10. The Court of Appeal in Orwochi v. R (1976-1980) KLR 1638 thought the period of 21 months to be adequate punishment for manslaughter in circumstances of self-defence not too dissimilar to the present case as noted by this Court in Machakos HC Cri. Case No. 14 of 2015, REPUBLIC V. PHILIP MUTHIANI KATHIWA, as follows:

“In considering the appropriate sentence, same offences should attract similar consistent penalties. In Andrew v. R (1976-1980) KLR 1688, in a case where the appellant and his co-accused had in a fight started by them the deceased was stabbed, the Court of Appeal found manifestly excessive and reduced a sentence of imprisonment for 11 ½ years to imprisonment for a term of 5 years. In Orwochi v. R (1976-1980) KLR 1638, the Court of Appeal reduced as manifestly excessive the sentence of 4 years imprisonment for an appellant who, in circumstances similar to this case,had in self-defence during an ensuing struggle stabbed the deceased using the panga by which the deceased had attacked him, to such sentence as ensured the immediate release of the appellant a young man aged 25 who had been in custody for 15 months before the sentence in the trial court and six months before appeal was heard and determined.”

11. I have considered the offer by Counsel for the accused that the accused could go to live with relatives in Eldoret if the Probation Officer’s report is negative for non-custodial sentence on account of volatility of the situation on the ground at his present residence. It is, however, not the role of the proper Court to assist the accused to avoid just punishment for his criminal act.”

9. I reiterate this view that a sentence which leaves the victim and the Society feeling that the offender despite a finding of guilty got away with the crime is not a desirable outcome of criminal justice. To sentence the offender herein to a non-custodial sentence so that he stays away from the place of the killing will have that effect in view of the ‘bitterness, anger and hostility’ on the part of the deceased’s family as shown in the Probation Officer’s Report aforesaid. In this case, the whole societal goals of retribution, rehabilitation and deterrence will find effect in the sentence. The sentence passed on the accused herein must reflect the moral blame-worthiness of the accused who in excessive force used a panga to stall an attack by the deceased during a fight in which they both had no weapons to call for the use of a dangerous weapon of a panga. If every fight between two or more people who could not agree on something resulted in the death of one of them, this world would be a very dangerous place to live in because naturally many disagreements result in a fight between the antagonists.

Orders

10. For the reasons given above, the Court upon finding the accused guilty and convicting him on his own plea for the offence of manslaughter contrary to section 202 as read with 205 of the Penal Code, sentences the accused to an imprisonment term for five (5) years, which in terms of the Proviso to section 333 (2) of the Criminal Procedure Code shall take into account the period that the accused has been in custody since 8th April, 2016.

DATED AND DELIVERED THIS 2ND DAY OF NOVEMBER 2017.

EDWARD M. MURIITHI

JUDGE

Appearances:

Mr. Chepng’swo for the Accused person.

Ms. Macharia, Assistant Director of Public Prosecutions for DPP.