Kosgei v Republic [2023] KEHC 25550 (KLR)

Kosgei v Republic (Criminal Case 60 of 2020) [2023] KEHC 25550 (KLR) (21 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25550 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case 60 of 2020

RN Nyakundi, J

November 21, 2023

Between

Erick Kibet Kosgei

Appellant

and

Republic

Respondent

Sentence

1. The convict was initially charged of murder contrary to section 203 as read with section 204 of the penal code. The particulars of the offence are that on the 7th day of October, 2020 at Chebarus village, Moiben sub-County within Uasin Gishu County he murdered Stephen Wekesa. Soon before the trail will commence the defence moved a motion in terms of section 137 (A) & 137(M) of the criminal procedure code seeking leave of the court for plea bargaining agreement for the state to consider a less offence of Manslaughter contrary to section 202 as read with section 205 of the Penal Code. As a consequence, the plea negotiations undertaken between the convict, the victim family, and the state gave rise to a plea bargaining agreement duly admitted by this court on November 21, 2023. The less offence of manslaughter was duly administered upon the convict who entered a plea of guilty and subsequently conviction of that offence entered by this court. Thereafter, both parties submitted orally on aggravating and mitigating factors for purposes of this court to exercise discretion in favour of the convict with regard to sentence.

2. In considering the appropriate penalty to impose I have identified the following factors as critical:a.Gravity of the offenceb.The character of the convict and that he has no previous record which will negatively impact the type of sentence to be imposed by this courtc.The design and manner of execution of the offence. This is all captured in the factual matrix factored in the plea agreement instrument.

3. Simply this offence of killing the deceased was avoidable had the convict exercised good judgement. The use of a dangerous weapon like a knife was uncalled for in circumstances in which the deceased had gone to seek refuge at the homestead of the accused family to safeguard his right to life in article 26 of the constitution. I have considered the mitigation factors fundamentally submitted by learned counsel Mr. Okungu on behalf of the convict, the sentiments that would be otherwise appropriate was it not for the weight I accord to aggravating factors. This was a very brutal and heinous crime which I am convinced beyond a reasonable doubt that the convict deserves a stiffer penalty. However, as the facts reveal there are other considerations of the convict being a first offender, his age, the likelihood of him reforming to become a better member of our society calls for this court to impose a 10year custodial sentence with effect from October 15, 2020.

4. 14 days right of appeal to the court of appeal explainedOrders accordingly

DATED, SIGNED AND DELIVERED AT ELDORET THIS 21ST DAY OF NOVEMBER, 2023. In the presence ofMr. Mugun for the StateAppellant……………………………..R. NYAKUNDIJUDGE