Republic v Kirui (Criminal Case 12 of 2019)  KEHC 16206 (KLR) (8 December 2022) (Judgment)
Neutral citation:  KEHC 16206 (KLR)
Republic of Kenya
Criminal Case 12 of 2019
RL Korir, J
December 8, 2022
Hillary Kipngetich Kirui alias Gilbert Kirui
1.The Accused Hillary Kipngetich Kirui A.K.A Gilbert Kirui was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 11th May 2019 at Chepkochun Sub-location within Mosonik Location Konoin Sub –County of Bomet County murdered Carolyne Kirui.
2.The Accused denied the charge before Muya J. on 23rd May, 2019. When the case came up for trial on 4th December, 2019, Ms. Chirchir, learned defence counsel informed the court that the Accused wished to commence plea bargain with the Prosecution. The court adjourned the trial to enable the parties time to plea bargain. The matter was adjourned several times before the parties finally filed a Plea Agreement dated 22nd November, 2021. When the matter came up on 27th April, 2022, the Court accepted the Agreement after satisfying itself that the Accused understood his rights and had executed the Agreement voluntarily.
3.The Accused then pleaded to the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. He pleaded guilty.
4.The Prosecutions Counsel then read the following facts as captured in the Plea Agreement:-
5.The Accused stated that the facts were true and the court convicted him on his own guilty plea. The court further called for a Pre-Sentence Probation Officer’s Report and scheduled a sentence hearing.
6.At the sentence hearing on 19th October, 2022, defence counsel submitted that the Accused was remorseful and had changed while in prison. That he did not intend to murder his wife. That he prayed for a lenient and non-custodial sentence so as to go and take care of and educate his children. Counsel further submitted that although a life was lost, the families of the accused and that of the deceased had reconciled and the Accused had sought their forgiveness.
7.The accused also told the court in further mitigation that he had changed and acquired skills in masonry while in remand. That he will therefore be able to work if released.
8.Mr. Njeru, the learned Prosecution counsel submitted that the Accused had saved the court time by plea bargaining. He however urged the court to impose a custodial sentence as the accused viciously attacked his wife and inflicted very severe injuries on her which must have caused her a lot of pain. Counsel also told the court that the Accused was a first offender.
9.Sentencing serves multiple purposes as enumerated in the Judiciary Sentencing Policy Guidelines (2016) which outline the objectives of sentencing at paragraph 4.1 as follows:-
10.In sentencing the Accused, I am guided by the gravity of the offence, the circumstances of the case and the offender’s personal circumstances. The court is also required by Section 9 and 12 of the Victim Protection Act (2014) to take into consideration the views of the victims or the victim impact statement.
11.In Jacob Kirimu Kabiru vs Republic (2010) eKLR, the Court of Appeal held that:-
12.Similarly in Leonard Maina Mwangi vs Director of Public Prosecutions & 2 others (2017) eKLR, Lesiit J. (as she then was) stated:-
13.The views of the victims were captured at page 3 of the Probation Officer’s report. He interviewed the mother of the deceased among other relatives. According to the report, the mother of the deceased was distraught and believed that her daughter was murdered by a violent husband disguising himself as a loving person. She believes that the act was intentional going by the number of times the deceased was stabbed. She described the marriage between the deceased and the accused as having been rocky because the accused was violent and jealous. According to her, the violence would escalate whenever the deceased got a job or any money from her ‘merry go round’ group.
14.According to the Report, the community was still shocked by the action of the accused but hoped that the two families would reconcile with time. The offender’s family was stated to be mourning the loss of their daughter in-law. They however pray for a lenient sentence and the accused to be given a non-custodial sentence.
15.I have considered the circumstances of the offence. The Accused and the deceased were living together as husband and wife and at the time of the offence, the two were estranged. The deceased had ran away from the matrimonial home owing to the violence visited upon her by the Accused. On the material day, she had gone back there to collect her identity card and birth certificate. The Accused was unhappy about her decision not to return to him. On her way out, after failing to convince her to stay and spend the night, a quarrel erupted. The Accused pulled out a knife and stabbed her several times killing her instantly.
16.The Accused, no doubt is now repentant having reflected on his rash action. This case however demonstrates the escalating violence in homes occasioned by the inability of partners to resolve marital disputes peacefully without violence being visited on the weaker party. The violent quarrels often revolve around issues of money and infidelity.
17.The probation officer documented information from the family members that it was not the first time that the Accused had assaulted or beaten the victim. It was not the first time she had left the matrimonial home and retuned. That this time round, when she made up her mind to leave for good, the Accused was exasperated. It was as if he told himself that she would either remain with him or she will be no more. The deep vengeance was reflected in the number of times he stabbed her. A look at the post-mortem report shows that the deceased sustained multiple cut and deep penetrating wounds on the posterior upper chest, left leg and hip joint, upper left posterior and scalp. She also sustained deep cut wounds on the head and collapsed lungs. The stab wounds penetrated through the thorax and ripped through the lungs and the cardiao-vascular system. The pathologist found the cause of death to be severe chest injury secondary to assault. To the mind of the court, the injuries demonstrate a heartless, cruel and beastly act.
18.I have considered the accused’s plea for a lenient sentence. It is the view of this court however, that lenient sentences in cases of this nature can only encourage gender based violence and in particular domestic violence. Where such violence ends in death, it must cease to be regarded as domestic violence. It is murder. In this case however, the Accused has already been convicted of the lesser offence. He must get a deterrent sentence. The sentence must be one that sends the message that violence in the home is not to be tolerated. Domestic violence, assault and wife beating in particular must not be allowed to flourish. It is a practice that must be consigned to history. The sentence must therefore reflect society’s collective condemnation of this most barbaric practice.
19.The accused prayed for a non-custodial sentence so as to go and parent his motherless children. This court is alive to the rights of those children. However, this court is of the view that there is no guarantee that those children would be safe in the hands of the Accused. Indeed, this view is supported by the social inquiry report.
20.This court has taken into consideration that the Accused plea bargained and saved judicial time. The Record shows that the Accused made a plea offer way back in 2019 and delay in the plea negotiation was attributed to the Prosecution. I have considered that the Accused was a first offender and was remorseful. He will therefore be spared the maximum sentence provided under Section 205 of the Penal Code which is life imprisonment.
21.The Accused is sentenced to serve 18 years imprisonment. The sentence shall be deemed to run from 17th May, 2019, being the date of his arraignment and pre-trial custody.
22.The Accused, having executed a plea agreement, has 14 days right of appeal against sentence only.
23.Orders accordingly.Judgment delivered, dated and signed at Bomet this 8th day of December, 2022..........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of the accused, Mr. Suter holding brief for Mr. Njeru for the State, Ms. Chirchir for the Accused and Kiprotich (Court Assistant).