1.Victor Kipkoech Rono the accused herein, was charged and convicted 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 are that on the 7th day of April, 2019 at Kamolok Village, Tabaita Sub-Location in Kaplelartet Location, Sigowet Soin Sub-County within Kericho County, the Accused unlawfully killed Amos Kipkoech Mutai.
2.Upon convicting the accused for the aforesaid offence, this court directed the county Probation Officer to file a pre-sentence report and also invited the accused to make submissions in mitigation to guide the court in determining the appropriate sentence to be meted out.
3.Miss Koech learned counsel for the accused, submitted that the accused is remorseful and regrets committing the offence. The learned counsel submitted that the accused was a second year student at O'lesus Technical Institute pursuing a carpentry course. The learned counsel submitted that the accused was in custody for eight months before he was released from custody and that the offender had been embraced back to society. The learned counsel informed the court that the deceased had formed the habit of locking the accused's house from outside when people were asleep and the accused wanted to discipline the deceased and therefore did not intend to kill him, it was not premeditated. She further submitted that there has been reconciliation between the offender's family and the family of the victim. She therefore urged the court to exercise leniency and order a non-custodial sentence.
4.Mr. Musyoki learned assistant Director of Public Prosecutions submitted that the accused ought to be treated as first offender as he has no prior records.
5.This court also called for a pre-sentence report. I have considered the pre-sentencing report prepared and filed by the Kericho County – Probation Officer. In the aforesaid report it is noted that the offender practices mixed subsistence farming on their family land. He does not drink alcohol or abuse drugs or spend time with individuals of questionable character. It is noted that the offender has no previous criminal record and is well known to the local administration and relates well with the community members even while on bond. The offender has plans to join a polytechnic institute and train in a trade skill.
6.The offender narrated how the deceased came to create disturbance at the offender's grandmother's compound in the wee hours of the night on several occasions, on the material day, the offender came to create disturbance, when a scuffle ensued and the offender assaulted the deceased, using a stick he had picked from the compound and the deceased left the compound. At dawn, the offender's family was informed that the deceased had been taken to Sigowet Hospital where he succumbed. The offender was subsequently arrested and charged with the instant offence.
7.The offender blames the deceased for creating disturbance and a breach of peace in the wee hours of the night on several occasions and that on the material day he never intended to harm the deceased rather to scare him and chase him out of the vicinity since it was late into the night. The offender therefore sought the court's leniency stating that he had no intention to harm the deceased culminating in the loss of life.
8.The family of the offender regretted the circumstances under which the offender cut short the life of the deceased. The family stated that the offender's actions were not premeditated, rather he chased the deceased out of the compound in the wee hours of the night, they therefore proposed a non-custodial sentence.
9.The deceased’s family and the offender’s family had reconciled and conducted the necessary cleansing rituals. The members of the deceased's family had forgiven the offender and therefore urged the court to exercise leniency during sentencing.
10.The local administration, the assistant chief Mr. Yegon and village elder Mr. Alexander stated that the offender is domiciled in their jurisdiction, they stated that the offender and his family had reported the incidences when the deceased would create disturbance and breach the peace in their homestead on several occasions but the deceased had refused to heed to their advice and stop creating disturbance. They also highlighted the fact that the offender relates well with other community members even while on bond, they were therefore not opposed to a non-custodial sentence.
11.The county probation officer noted the above sentiments, the fact that the offender has a fixed abode and enjoys quality relationships with his family members. The probation officer noted that the offender was remorseful and regretted the offence, the offence was not premeditated rather he wanted to scare and chase the deceased away from their compound as he was creating disturbance in the wee hours of the night. The probation officer noted that the family of the offender, the family of the deceased, the community and local administration were receptive to a non-custodial sentence.
12.In view of the findings of the social inquiry, the probation officer was of the opinion that the offender was suitable for a non-custodial sentence and therefore recommended a probation order sentence and whilst under supervision the offender would receive guidance and counseling on anger management with a view towards positive behavior change.
13.I have considered that the accused has been in custody for a period of eight (8) months since his arrest and subsequent arraignment in court on April 12, 2019.
14.Having considered the circumstances of the offence, submissions in mitigation and having further considered the contents of the pre-sentence report which is favourable, it is apparent that in the circumstances of this case that a non-custodial sentence is appropriate. I am therefore inclined to adopt the recommendation of the county probation officer.
15.Consequently, I hereby sentence the accused namely: Victor Kipkoech Rono to serve on a probation order for a period of 3 years under the Supervision of the Kericho County Probation Officer.