[2022] KEHC 10270 (KLR)

Republic v Yegon (Criminal Case 17 of 2018) [2022] KEHC 10270 (KLR) (1 July 2022) (Sentence)

Neutral citation: [2022] KEHC 10270 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 17 of 2018

TM Matheka, J

July 1, 2022

Between

Republic

Prosecution

and

Erick Yegon

Accused

Sentence

1. Erick Yegon was charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

2. It was alleged that on 9th March 2018 at Emitik Location, Kuresoi South Sub County within Nakuru County he murdered Nickson Rono.

3. Plea was taken on 10th April 2018. He pleaded not guilty. Hearing took off on 29th July 2020 and we heard seven (7) witnesses.

4. On 23rd February 2022 the court was told that Eric Yegon and the prosecution had entered into a Plea Agreement whereby Eric had negotiated to plead to the lesser charge of Manslaughter Contrary to Section 202 as read with 205 of the Penal Code.

5. It was alleged that on the 9th March 2018 at Emitik Location, Kuresoi Sounty Sub County, Nakuru County, he caused the death of Nickson Rono.

6. Upon questioning by the court, he confirmed that he had freely entered into the Plea Agreement and freely accepted to plead guilty to the charge of Manslaughter.

7. The charge was read to him and he pleaded guilty. The facts are that;“On 9th March 2018 about 5. 30 p.m. the deceased, Nickson Rono and his friends went to Honey Moon Bar to drink alcohol. About 8. 00 p.m. the owner of the Bar came and found them. While they were drinking a certain girl entered the bar and went to sit with Nickson. Nickson bought her drinks. About 9. 30 p.m. the accused entered the bar. He appeared drunk, he sat near Nickson, he touched/grabbed the girl who was seated with Nickson. The people in the bar were not pleased. They warned him against grabbing her again. He moved to another place. The Bar owner being aware that the girl was girlfriend to both the accused and Nickson feared that a fight would break out and directed that the bar be closed and everyone to leave. It was 10. 00 p.m.When all people left the bar, the bar owner heard Nickson screaming. He went out, he found that the accused and Nickson appeared to be fighting. Nickson was with his neighbour, they left and went home, which was the same direction to the home of the accused. They went together. On the way before reaching home, they were quarrelling. The accused ran and got a jembe and hit the deceased on the head. The neighbour assisted him and took him to Olenguruone Hospital but he died while undergoing treatment.On 14th march 2018 post mortem was conducted. The doctor said cause of death was severe head injury.The prosecutor produced the post mortem as Exhibit 1. The accused was charged with Murder but upon plea negotiations he pleaded to the lesser charge of Manslaughter.”

8. The accused pleaded guilty to the facts and was convicted on his own plea of guilt.

9. The State through Ms. Murunga submitted that the accused be treated as a first offender, and recommend a sentence of ten (10) years imprisonment.

10. In mitigation, Ms Mugweru Advocate for the accused submitted that he was remorseful. That had been in custody since March 2018 during which time he had taken some courses and had given his life to Jesus. That at the time of committing the offence he was twenty two (22) years old and it was over his first love, a crime of passion which he really regretted.

11. That his family and that of the victim had reconciled while he was in custody and there was a document to that effect that the two (2) families were ready to welcome the accused to his home.

12. I sought for a Pre-sentence Report from Probation and After Care Services. The accused person conceded that he hit the deceased out of anger, over the woman they both dated. That at the time both were under the influence of alcohol.

13. The family agreement was placed before the court as evidence of reconciliation.

14. I immediately noted that not a single woman was involved in this so called reconciliation, not the mother of the accused, or even the mother of the deceased. I was concerned that the name of the mother of the deceased was not even mentioned in the report, nor was there information as to whether the deceased was married or had children, and if so, what their views were.

15. I found it unfair and contrary to the requirements of the Victim Protection Act and the Criminal Procedure Code that the family of the victim did not feature as prominently as it is expected, and required by the law.

16. It was apparent to me that the Probation and After Care Services Officers were unable to capture the views of the victims, and this not being the 1st case, I returned the report with directions a proper social inquiry report be carried out capturing the views of the victims. It cannot be over emphasized that the Probation and After Care Officers need to acquaint themselves with the Victims Protection Act, to enable them capture the views of the victims as envisaged by the Constitution, Section 329 of the Criminal Procedure Code, the Victim Protection Act and the Sentencing Guidelines.

17. It took a while for this further report to be availed. It was forwarded to court on 27th June 2022.

18. The report reveals a dark twist to the case. That the victim’s mother was not initially mentioned, or even consulted in the preparation of the report, neither was she involved in the alleged reconciliation. It was indicted that she had separated with the alleged father of the deceased, that he was not the biological father of the victim, that she had not been involved in his burial rites and was still bitter and angry. That the so called reconciliation had not been done in accordance with the traditions of the Kalenjin and that it was necessary that the same be done properly to bring her the closure that she so much needed. She and the rest of the victim’s maternal family had no problem with the accused getting a non-custodial sentence.

19. The Probation and After Care Services Office indicated that the complexity of the underlying reconciliation required more than they could handle and requested that that issue be referred to Alternative Justice System (AJS).

20. I have carefully considered all the reports before me. I have considered the mitigation by the accused and the recommendation by the ODPP. The only issue is what would be the appropriate sentence.

21. The accused has been in remand custody since 19th March 2018. Hence he has been in custody for slightly more than four (4) years. Going by the mandatory provisions of Section 333 of the Criminal Procedure Code which provides for Warrant in case of sentence of imprisonment and states;“(1)….(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.”

22. It is evident that if the court were to sentence him to ten (10) years, imprisonment, he would only be liable to serve six (6) years’ imprisonment. Taking into consideration the requisite remission, he would serve only up to four (4) years in custody.

23. Taking into consideration that public interest, the state has already spent public resources to contain and to reform that accused while he was in remand custody. He has learnt a lesson, he has served time and it is apparent that the community is ready to receive him for further supervision in addition to carrying out reconciliation under AJS to prevent any further conflict.

24. In the circumstances it is my considered view that the non-custodial sentence would couple up very well with the period already served in custody and the reconciliation of the families through the AJS.

25. In addition to the period already served, which I have taken into consideration, the accused is therefore sentenced to three years’ probation supervision.

26. In addition, he and his family will take part in the fresh reconciliation that will involve Joyce, the biological mother to the victim and the victim’s maternal relatives through the AJS at Nakuru Law Courts.

27. Mention before the AJS Deputy Registrar on 1st August, 2022 for the Probation and After Care Services officer and the Probationer for Directions.

28. The matter will be mentioned after ninety (90) days before the Deputy Registrar to confirm the progress.

29. Probation and After Care Services Nakuru be served with this order.

30. Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU VIRTUALLY THIS 1ST DAY OF JULY, 2022. MUMBUA T MATHEKAJUDGEIn the presence of;C/A EdnaFor state: Ms MurungaFor accused: Ms. Mugweru