Republic v Chepkwony [2023] KEHC 26462 (KLR)

Republic v Chepkwony (Criminal Case E019 of 2021) [2023] KEHC 26462 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26462 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E019 of 2021

RL Korir, J

December 7, 2023

Between

Republic

Prosecution

and

Gideon Kipkoech Chepkwony

Accused

Judgment

1. Gideon Kipkoech Chepkwony alias Aron (accused) was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code cap 63 Laws of Kenya. The particulars of the offence is that on the October 11, 2021 at Siongiroi Location, Chepalungu Sub-County within Bomet County murdered Amos Kipkoech Langat.

2. The accused took plea on November 8, 2021 and denied the charge. The case went for pre-trial on November 25, 2021. When the case came up for trial on October 18, 2022, the learned prosecution counsel informed the court that the State had received a plea offer from the defence. The matter was consequently taken out to enable the parties’ plea bargain. The parties however dragged on in the negotiation for an unduly long time.

3. A plea agreement was finally filed on October 25, 2023. The court after considering the plea agreement and after being satisfied that the accused understood and fully participated voluntarily in the process, accepted the plea agreement pursuant to section 137A of the Criminal Procedure Code.

4. The accused took plea on the substituted charge on October 25, 2023. He pleaded guilty. The prosecution counsel read the facts as follows; -“The facts of this case are that on October 11, 2021 at Siongiroi Location Chepalungu Sub-County within Bomet County, the deceased herein Amos Kipkoech Langat together with his friends Amos Kipkemoi, Titus Chirchir and others were taking alcohol at Kambi Shetani area which is within Siongiroi Trading centre. At about 0130hrs in the night the deceased together with the said Amos Kipkemoi were confronted by the accused Gideon Kipkoech Chepkwony. The confrontation was about a lady who had come from Ndanai but she disappeared after the incident.The deceased and Amos Kipkemoi descended on the accused and physically assaulted him. Titus Chirchir tried to separate them but the accused overpowered him and he had to stand aside. After being defeated the accused ran away only to return after about 20 minutes with a knife. The accused stabbed the deceased on the neck using a knife. The deceased surrendered to the police on January 11, 2021 at about 1030hrs and confessed to have killed the deceased. The deceased was taken to Siongiroi health centre where on arrival he was pronounced dead by a clinical officer who was on duty. His body was removed to Longisa County Referral Hospital Mortuary where post-mortem was carried out by Dr. Langat Ronald who formed the opinion that the deceased had died as a result of internal bleeding secondary to stab wound. The kitchen knife which was believed to have been used to stab the deceased was recovered after the accused had taken the officers and shown them where he had hidden it.”

5. The accused confirmed the facts as true and correct. He was accordingly convicted on his own guilty plea for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

6. The court directed the filing of a pre-sentence report and a victim impact statement.

7. At the sentencing hearing on November 15, 2023 Ms Kosgei the learned defence counsel submitted that the Accused was remorseful. She submitted that the accused committed a crime of passion following provocation. She stated that the accused is now transformed having given his life to Christ leading to his behavioral change. That the accused was a son of a single mother whom he assisted to fend for the family. That the accused had suffered family separation as his wife left when he was arrested. Counsel urged the court to consider that the accused plea bargained and saved judicial time. She prayed for leniency.

8. The accused addressed the court directly and asked to be forgiven. He stated that he accepted his mistakes which he attributed alcoholism and asked to be granted a non-custodial sentence.

9. Learned prosecution counsel Njeru submitted that the accused was a first offender and had saved State resources through plea bargaining. Counsel further urged the court to consider that the accused went to get the knife with which he stabbed the deceased. He prayed for a lenient but custodial sentence.

10. The Sentencing Policy Guidelines 2023 outlines the objectives of sentencing at paragraph 1. 3.1 as follows: -Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other- in so far as possible, sentences imposed should be geared towards meeting the objectives in totality.i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Community Protection.vi.Denunciation.vii.Reconciliation.viii.Reintegration.

11. The court is called upon to consider any mitigating and aggravating circumstances in order to arrive at an appropriate sentence. Some of the factors to be considered in determining an appropriate sentence were outlined in the famous Supreme Court case of Francis Karioko Muruatetu & another v Republic [2017] eKLR (SC Petition No 15 &16 of 2015) as follows: -“(71)…, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:(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;(h)any other factor that the Court considers relevant.”

12. In this case, I have considered that the accused and the deceased initially squabbled over a woman friend who was in company of the deceased and other friends who were drinking in the bar. That after the initial fight the accused who was overpowered went away and armed himself with a knife with which he stabbed the deceased. He may have been provoked the first time but going to arm himself to return to the fight was intentional. He cannot therefore benefit from the defence of provocation.

13. I have considered that the accused had no criminal antecedents and that he was remorseful. He also saved precious judicial time by plea bargaining. With respect to the views of the victims, the report prepared by the probation officer stated that the family of the deceased was still bitter with the accused. That at one point they were willing to reconcile with the accused’s family only to back track on the reconciliation.

14. Having taken all factors into consideration vis-a-vis the objectives of sentencing, I am persuaded that the accused does not merit a non-custodial sentence. Human life must not be trivialized to the extent that when people disagree over relationships they resort to stabbing their rivals to death. They must learn to resolve relationship conflicts in non-violent ways.

15. In the end, the accused is sentenced to serve ten (10) years’ imprisonment. The sentence shall be deemed to run from October 15, 2021 being the date that he was arrested and placed in pre-trial custody.

16. Orders accordingly

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 7TH DAY OF DECEMBER, 2023R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Njeru for the State, Mr. J.K. Koech holding brief for Ms. Kosgei for the Accused and Siele (Court Assistant)