Republic v Kipng’etich & another [2023] KEHC 27521 (KLR)

Republic v Kipng’etich & another (Criminal Case E021 of 2021) [2023] KEHC 27521 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27521 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E021 of 2021

RL Korir, J

December 15, 2023

Between

Republic

Prosecution

and

Miron Kipng’etich

1st Accused

Ivyne Chepkoech

2nd Accused

Judgment

1. Miron Kipng’etich and Ivyne Chepkoech (1st and 2nd Accused respectively) were charged with the offence of murder Contrary to Section 202 as read with Section 205 of the Penal Code. They were alleged to have jointly murdered Anastacia Chepchumba on 14th October, 2021 at Siongiroi location in Chepalungu Sub-County within Bomet county.

2. Each took plea on 9th November, 2021 and denied the charge. At the pre-trial on 24th November, 2021, defence Counsel made an application for both to be released on bond. In a Ruling dated 16th December, 2021, the court denied both Accused bail on the grounds that they had run away from home and school, abused drugs and alcohol and were likely to abscond trial. The court noted their respective Probation Officer’s Reports that their parents and guardians admitted that the two were truant and beyond parental control and that the no one was willing to stand surety for them.

3. The case was set for trial but subsequently the defence made a plea offer to the state. The court observed that the 2nd Accused was a minor at 17 while the 1st Accused was also a young adult at 19 years. The court therefore directed that their parents/guardians and the children officer be involved in the plea negotiations. The negotiations took some time before their respective Plea Agreements were filed on 3rd October, 2023.

4. The Court accepted the Plea Agreements and the Accused took Plea on the substituted charge on 4th October, 2023. Each pleaded guilty.

5. The facts as read by the Prosecution Counsel were as follows: -“That the 1st and 2nd Accused were boyfriend and girlfriend. They had run away from school and home and were living together. They had an infant. On the day of the incident, they were both drunk. They lay on the baby causing her death. They accept that they caused the death of the infant. At the time, they were minors.”

6. Each Accused accepted the facts as true and was convicted of the lesser offence of manslaughter Contrary to Section 202 as read with Section 205.

7. This court called for a pre-sentence probation officers’ report and scheduled a sentencing hearing.

8. At the sentencing hearing on 25th October, 2023 learned defence counsel Mr. Kenduiwo submitted that the 1st Accused was remorseful. That he was 17 years’ old at the time and a Form 3 student at Siongiroi Secondary School. That he had reformed while in prison custody; that the family had forgiven him and that he desired to go back to school. He prayed for a non-custodial sentence. The mother of the 1st Accused addressed the court and undertook to take him back to school if released. The 1st Accused asked for leniency and expressed his wish to go back to school.

9. For the 2nd Accused Counsel submitted that she was 17 years’ old at the time and in Form 2. That while in prison custody she had reformed and acquired skills in tailoring and hair dressing. He prayed for a non-custodial sentence.

10. The 2nd Accused addressed the court and asked for forgiveness. She said that she had changed and wished to go back to school. Her mother who was also present in court undertook to take her back to school.

11. The 1st Accused is now 20 years’ old. He was 18 years’ old at the time of the offence. The 2nd Accused is now 19. She was 17 at the time of the offence. This court however has considered the 2nd Accused was a minor at the time of the offence and shall apply the provisions of the children’s Act in sentencing.

12. Section 239 of the Children Act, 2022 provides: -Methods of dealing with children in conflict with the law.1. Where a child is tried for an offence, and the court is satisfied as to their guilt, the Court may deal with the case in one or more of the following ways: -a.Discharge the child under Section 35(1) of the Penal Code;b.Discharge the child on his or her entering into a recognizance, with or without sureties;c.Make a probation order against the offender under the provisions of the Probation of Offenders Act;d.Commit the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender;e.If the child is between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances;In the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institution Act

13. In the case of JKK V. Republic (2013 eKLR):“The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of eighteen years while taking into account the overarching objective is the preservation of the life of the child, and his best interest. A death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of sixteen years the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant, though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his emission or lack of judgement by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes which can only happen after serving a custodial sentence.”

14. I have considered the circumstances of the offence. The two Accused were stated to have been in the habit of alcohol and drug abuse and at the time of the death of the infant, they were drunk. They had run away from school and home to cohabit. Their case is one of the many cases of truancy and juvenile misconduct. It is one of the many cases where parental guidance was either absent or not taken in by the children or young adults. This Court is of the view that the 1st and 2nd Accused have now sobered up in prison custody and hopes that they will not relapse to the misguided conduct.

15. I have considered the Probation Officer’s Report. The Report details that prior to their arrest both Accused led a life of drug and alcohol abuse and associated with anti-social characters. That they had no respect for their parents and community. The Report however states that they had now expressed remorse and a willingness to change. The Probation officer recommends close mentorship. Psychological counselling and rehabilitative intervention for them.

16. I have considered the mitigation offered by the Accused and their expressed desire to go back to school and make something of their lives. Their mitigation calls for pity. These are young persons at the prime of their youth. They have learnt the consequences of their truancy and unlawful conduct and they deserve a second chance.

17. The parents of the Accused have expressed a willingness to take them back to school. To support their intention, they provided letters from the Principal of their former school expressing willingness to admit them back in school.

18. This court takes the view that the parents of the Accused still have parental responsibility over the Accused who have just crossed over into adulthood and ought to take them back to school. This Court also takes the view that it would be in the best interest of the Accused to be admitted in different schools and in any case not in their old school for purposes of making a fresh start.

19. In the end, I consider the Accused fit for a non-custodial sentence.

20. The 1st Accused, Miron Kipng’etich shall serve 3 years’ probation. He shall enroll in a secondary school in January 2024 and complete his basic education. He shall undergo a rehabilitative program under the probation officer.

21. The 2nd Accused, Ivyne Chepkoech is sentenced to 3 years’ probation. She shall enroll in a secondary school in January 2024 and complete her basic education. She shall undergo a rehabilitation program under the probation officer.

22. This file shall remain active for post-judgement supervision for duration of the probationary sentence. Towards this end, this matter shall be mentioned quarterly every school holiday. The first mention being on 11th April, 2024 or thereabout. The 1st and 2nd Accused shall sign a personal undertaking to appear in court.

23. Orders accordingly

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 15THDAY OF DECEMBER, 2023. .........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of the 1st and 2nd Accused, Mr. Njeru for the State, Mr. Merebu holding brief for Mr. Kenduiwo for the Accused and Siele (Court Assistant)