REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.E025 OF 2023
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
CHEPKURGAT CHERUIYOT ……..…………………….. ACCUSED
SENTENCE
1. Chepkurgat Cheruiyot was charged with Section 204 of the Penal Code. It was alleged that on 2/9/2022 at an unknown time at Mugurin village Mogotio Sub-County within Baringo County murdered Nicholas Kibet.
2. He denied the charge.
3. The matter was heard and determined by the then Lady Justice Racheal Ng’etich (as she was then)
4. It was delivered on 27/11/2025 and the convict person was convicted of manslaughter c/s 202 as read with s. 206 of the Penal Code.
5. The Criminal Procedure Code provides at a. 201(2) that: The provisions of section 200 of this Act shall apply mutatis mutandis to trials held in the High Court.
Section 200 of the Criminal Procedure Code provides inter alia:
Conviction on evidence partly recorded by one magistrate and partly by another
(2) Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment
6. During the sentence hearing it Ms. Omari for the state submitted that:
7. The convict was 45 years old and a 1 st offender. That the deceased was his 1 st born child, a minor at the time of the offence. The convict was the person who was supposed to protect the deceased being his child. Deceased was truant, the convict was disciplining the child, the child died. Injuries were extensive- cause of death as per PEX-2, Post mortem – acute head injury with multiple –Soft tissue injury due to blunt force assault. Deceased suffered other injuries on back, lower and upper limbs and on the neck, a dislocated right hip joint. The convict was not remorseful owing to his conduct immediately after the offence- he wanted to pass off death of deceased as natural causes – it is as the point he was committing the body to the mortuary that injuries were noted and investigations followed – revealing the cause of death as not being natural causes.
8. Counsel submitted that a sentence of 30 years imprisonment would suffice. The court was referred to Koi -Vs- R [2025]eKLR . Ms. Kemunto for convict submitted that the convict still maintained his innocence stating that the deceased passed on due to injuries sustained from a “mob justice” incident after suspicion of theft. Deceased was taken home while he passed on later. However, noting the same, the convict has lost a son, the loss of his son has caused him immense pain, loss as a father. Deceased was 1 st born child- he was raised by the convict. Death of the deceased is a personal tragedy and the life is irreplaceable for which now the convict will bear burden for the rest of his life.
9. It was submitted that the sentence imposed by this court could exceed the emotional psychological burden borne by the convict . That he was the father of 7 children who depended on him for everything including emotional and financial support, that he was doing business to support the family and that his wife was a house wife who could not solely support his family. He had been in custody since November 2025, he had reflected on his actions. The defence sought a Probation Order and he be taken to rehabilitation for anger management. The court was referred to Bomet Cr. Case 18/17 R –vs- Kirui [2025] eKLR. where the court sent the convict for mentorship and anger management.
10. Given a chance to speak the convict stated
11. I have 8 children not 7. Naomba msamaha. Nimerebika. Siwezi rudia. Kuongelesha tu. Naomba msamaha nichunge watoto
12. I have carefully considered the submissions the authorities cited and the PSR filed on 26 th January 2026.
13. The only issue for determination is what is the appropriate sentence.
14. The Trial Judge found that the convict exercised poor judgment in the manner in which he treated the death of his son. That he had no intention of killing his own child and proceeded to set aside the charge of murder and substituted it with manslaughter c/s 202 as read with s. 205 of the Penal Code.
15. S. 205 provides that a person found guilty of manslaughter is liable to imprisonment for life.
16. The basis for the sentencing hearing cannot be overemphasized. This is evident from the first edition of the Judiciary Sentencing Policy Guidelines where the then Chief Justice made this observation;
Sentencing has been a problematic area in the administration of justice. It is one of those issues that has constantly given the Judiciary a bad name – and deservedly so. Sometimes out rightly absurd, disproportionate and inconsistent sentences have been handed down in criminal cases. This has fuelled public perception that the exercise of judicial discretion in sentencing is a whimsical exercise by judicial officers. [1]
17. The Hon Justice Msagha Mbogholi stated this in the same guidelines
Reaching a fair decision in sentencing is neither an easy nor straightforward process; several considerations come into play. While sentences are defined by law, the measure of what is an appropriate sentence in a given case is left to the discretion of judges and magistrates. As Justice McArdle is famously quoted saying, “Anyone can try a case. That is as easy as falling off a log. The difficulty comes in knowing what to do with a man once he has been found guilty.” Sentencing is as important as all other aspects of a criminal trial. Sentencing in Kenya has been marked by instances of unwarranted disparities, lack of certainty and transparency in decisions, disproportionate sentences and lack of uniformity in sentences with respect to same offences committed under similar circumstances. In other respects, lack of sufficient public education has contributed to misconceptions about sentencing, especially the undue focus on custodial sentences to the exclusion of other appropriate forms of sentences. [2]
18. Sentencing must be based on the principles of fairness, justice, proportionality and commitment to public safety.
19. The pre-sentence inquiry report provided by PACs clearly states that the convict is remorseful, regrets the actions that led to the death of his son and told the court that from now hence forth he will be talking to his children . That he would not repeat the offence.
20. The Children Act 2022, outlaws corporal punishment which is defined in the following terms
"corporal punishment" means the use of physical force applied on a child by the use of any means, including a cane or other object, with the intention of inflicting pain or discomfort for the purpose of corrective discipline or punishment;
21. Section 25(3) of the Act states:
(3) Any person who—
(a) unlawfully deprives a child of his or her liberty;
(b) subjects the child to—
(c) torture or other cruel and inhuman or degrading treatment, including corporal punishment,
(d) any cultural or religious practice which dehumanizes or is injurious to the physical, mental and emotional wellbeing of the child, commits an offence and shall, on conviction, be liable to the offence under the Prevention of Torture Act (No. 12 of 2017).
22. This provision is applied to any person with parental responsibility by s. 152 of the Act.
23. However, a parent is given the leeway to impose appropriate punishment at s. 25 of the Act which guarantees the child’s r ight to freedom from torture etc.
(1) Every child has the right to freedom from torture and cruel, inhuman or degrading treatment or punishment as provided under Article 25 (a) of the Constitution
(2) The assignment of any task or infliction of punishment by way of penalty for any offence committed by a child under any law shall not be construed as a contravention of the right specified in subsection (1) Provided that any such punishment shall be humane and preserve the child’s dignity, and be commensurate with the evolving capacity of the child .
24. Evidently a parent retains the right to discipline their child but only to the extent that the punishment is humane, it preserves the dignity of the child and takes cognizance of the levels of understanding of the child.
25. So, the convict though he may have been exercising his parental responsibility, the reason for the outlawing of corporal punishment of children became clear when his child died. An adult hitting a child in anger may not exercise restraint and cause grievous harm, whose impact may be permanent injury/a fatality .
26. The family of the convict presented what I call: Mitigation: the lived reality of the convict presented to Court live
27. This matter was in my first cause list at Eldama Ravine. When I finally found the court’s entrance, there was a lady standing near there with two children one of whom she was carrying . I had no idea she was coming to court as the court is snug among other government offices.
28. When I entered the court room I noted that one whole bench was occupied children. I asked the court assistant whether we had a children matter I had missed out. The answer was no. I asked who was with the children. A man walked out and came back with a lady who was carrying a child. The lady spoke and said the children were hers. She had come with them to see their father, who turned out to be the convict in this case. That she was his wife. That they had forgiven him.
29. I called the children officer to conduct the social inquiry on the welfare of the children and told the mother not to bring them to court again. It was not necessary.
30. The report was filed on 15 th April 2026. It gives a blanket report of what the children said: generally, that they had come to court by choice because they strongly wanted their father back. He had been on bond until he was found guilty of this offence. The report indicated their youngest child was barely 4 months old, the next one was 1 year and 7 months, the rest in grade 3, grade 5, grade 6. grade 7. grade 9. and form 3. That these children risked falling out of school.
31. The postmortem clearly sets out the injuries that the child sustained . They were extensive. The postmortem stated “the convict person subjected beating on his child as a way of disciplining for correction purpose after it was alleged that the deceased has stolen someone’s money and other valuables and the child succumbed in the process. ”Cause of death was “Acute head injury with multiple generalized soft tissue injuries due to blunt force secondary to assault. ”The body also had other injuries in the body, bruises and a dislocated right hip joint evidence that of a beating. The convict is remorseful. He lost his first born perhaps in the desire that he would not raise a child who would steal from the neighbours. A sentence should take into account all the circumstances of the offence, in this case the trial Judge noted that the convict’s conduct after the death of the child demonstrated poor judgment and an attempt to conceal the assault but he had no intention to kill.
32. I have carefully considered the submissions, the authorities cited , the pre-sentence report, the authorities cited.
33. A custodial sentence in my carefully considered view would not serve the purposes of sentencing. He spent some time in custody.
34. Amejuta.
35. He will live with this for the rest of his life. His family accepts his mistake and wants him back. He has 8 more children who immediately became in need of care and protection when their brother died and when their father was found guilty and convicted for his killing.
36. Does the convict posse any threat to his other children?
37. The Pre-sentence report and the children officer’s report paint him as a good father. The trial judge also found that this was as a result of exercise of poor judgment. It is my view that he does not posse any threat to his other children.
38. The convicted person will benefit from a probation order that includes his getting counselling on conflict management and anger management. He will also benefit from mentorship on positive parenting, something that the PACs and SDCS are directed to work together and to avail to the convict.
39. The convict is Placed on Probation Supervision for three years on condition that the he complies with the Probation order to include the aspects in paragraph 38 above.
40. In default the convict will risk revocation of the Probation Order and the consequence of imprisonment.
RULING dated signed and delivered in open court at Nakuru Main Prison on 13 th May 2026
Mumbua T Matheka
Judge
Accused Present
CA Karanja
Ms. Esang for the accused present virtually
Ms. Omari and Ms. Kosgei for DPP
Ms. Ombaka for PACs.
FOOTNOTES
[1] Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga
[2] Chairperson - Judicial Taskforce on Sentencing
Sentence Ruling KBT HCCR. No. E025/2023 R vs Chepkurgat Cheruiyot Page 3
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.E025 OF 2023
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
CHEPKURGAT CHERUIYOT ……..…………………….. ACCUSED
SENTENCE
1. Chepkurgat Cheruiyot was charged with Section 204 of the Penal Code. It was alleged that on 2/9/2022 at an unknown time at Mugurin village Mogotio Sub-County within Baringo County murdered Nicholas Kibet.
2. He denied the charge.
3. The matter was heard and determined by the then Lady Justice Racheal Ng’etich (as she was then)
4. It was delivered on 27/11/2025 and the convict person was convicted of manslaughter c/s 202 as read with s. 206 of the Penal Code.
5. The Criminal Procedure Code provides at a. 201(2) that: The provisions of section 200 of this Act shall apply mutatis mutandis to trials held in the High Court.
Section 200 of the Criminal Procedure Code provides inter alia:
Conviction on evidence partly recorded by one magistrate and partly by another
(2) Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment
6. During the sentence hearing it Ms. Omari for the state submitted that:
7. The convict was 45 years old and a 1 st offender. That the deceased was his 1 st born child, a minor at the time of the offence. The convict was the person who was supposed to protect the deceased being his child. Deceased was truant, the convict was disciplining the child, the child died. Injuries were extensive- cause of death as per PEX-2, Post mortem – acute head injury with multiple –Soft tissue injury due to blunt force assault. Deceased suffered other injuries on back, lower and upper limbs and on the neck, a dislocated right hip joint. The convict was not remorseful owing to his conduct immediately after the offence- he wanted to pass off death of deceased as natural causes – it is as the point he was committing the body to the mortuary that injuries were noted and investigations followed – revealing the cause of death as not being natural causes.
8. Counsel submitted that a sentence of 30 years imprisonment would suffice. The court was referred to Koi -Vs- R [2025]eKLR . Ms. Kemunto for convict submitted that the convict still maintained his innocence stating that the deceased passed on due to injuries sustained from a “mob justice” incident after suspicion of theft. Deceased was taken home while he passed on later. However, noting the same, the convict has lost a son, the loss of his son has caused him immense pain, loss as a father. Deceased was 1 st born child- he was raised by the convict. Death of the deceased is a personal tragedy and the life is irreplaceable for which now the convict will bear burden for the rest of his life.
9. It was submitted that the sentence imposed by this court could exceed the emotional psychological burden borne by the convict . That he was the father of 7 children who depended on him for everything including emotional and financial support, that he was doing business to support the family and that his wife was a house wife who could not solely support his family. He had been in custody since November 2025, he had reflected on his actions. The defence sought a Probation Order and he be taken to rehabilitation for anger management. The court was referred to Bomet Cr. Case 18/17 R –vs- Kirui [2025] eKLR. where the court sent the convict for mentorship and anger management.
10. Given a chance to speak the convict stated
11. I have 8 children not 7. Naomba msamaha. Nimerebika. Siwezi rudia. Kuongelesha tu. Naomba msamaha nichunge watoto
12. I have carefully considered the submissions the authorities cited and the PSR filed on 26 th January 2026.
13. The only issue for determination is what is the appropriate sentence.
14. The Trial Judge found that the convict exercised poor judgment in the manner in which he treated the death of his son. That he had no intention of killing his own child and proceeded to set aside the charge of murder and substituted it with manslaughter c/s 202 as read with s. 205 of the Penal Code.
15. S. 205 provides that a person found guilty of manslaughter is liable to imprisonment for life.
16. The basis for the sentencing hearing cannot be overemphasized. This is evident from the first edition of the Judiciary Sentencing Policy Guidelines where the then Chief Justice made this observation;
Sentencing has been a problematic area in the administration of justice. It is one of those issues that has constantly given the Judiciary a bad name – and deservedly so. Sometimes out rightly absurd, disproportionate and inconsistent sentences have been handed down in criminal cases. This has fuelled public perception that the exercise of judicial discretion in sentencing is a whimsical exercise by judicial officers. [1]
17. The Hon Justice Msagha Mbogholi stated this in the same guidelines
Reaching a fair decision in sentencing is neither an easy nor straightforward process; several considerations come into play. While sentences are defined by law, the measure of what is an appropriate sentence in a given case is left to the discretion of judges and magistrates. As Justice McArdle is famously quoted saying, “Anyone can try a case. That is as easy as falling off a log. The difficulty comes in knowing what to do with a man once he has been found guilty.” Sentencing is as important as all other aspects of a criminal trial. Sentencing in Kenya has been marked by instances of unwarranted disparities, lack of certainty and transparency in decisions, disproportionate sentences and lack of uniformity in sentences with respect to same offences committed under similar circumstances. In other respects, lack of sufficient public education has contributed to misconceptions about sentencing, especially the undue focus on custodial sentences to the exclusion of other appropriate forms of sentences. [2]
18. Sentencing must be based on the principles of fairness, justice, proportionality and commitment to public safety.
19. The pre-sentence inquiry report provided by PACs clearly states that the convict is remorseful, regrets the actions that led to the death of his son and told the court that from now hence forth he will be talking to his children . That he would not repeat the offence.
20. The Children Act 2022, outlaws corporal punishment which is defined in the following terms
"corporal punishment" means the use of physical force applied on a child by the use of any means, including a cane or other object, with the intention of inflicting pain or discomfort for the purpose of corrective discipline or punishment;
21. Section 25(3) of the Act states:
(3) Any person who—
(a) unlawfully deprives a child of his or her liberty;
(b) subjects the child to—
(c) torture or other cruel and inhuman or degrading treatment, including corporal punishment,
(d) any cultural or religious practice which dehumanizes or is injurious to the physical, mental and emotional wellbeing of the child, commits an offence and shall, on conviction, be liable to the offence under the Prevention of Torture Act (No. 12 of 2017).
22. This provision is applied to any person with parental responsibility by s. 152 of the Act.
23. However, a parent is given the leeway to impose appropriate punishment at s. 25 of the Act which guarantees the child’s r ight to freedom from torture etc.
(1) Every child has the right to freedom from torture and cruel, inhuman or degrading treatment or punishment as provided under Article 25 (a) of the Constitution
(2) The assignment of any task or infliction of punishment by way of penalty for any offence committed by a child under any law shall not be construed as a contravention of the right specified in subsection (1) Provided that any such punishment shall be humane and preserve the child’s dignity, and be commensurate with the evolving capacity of the child .
24. Evidently a parent retains the right to discipline their child but only to the extent that the punishment is humane, it preserves the dignity of the child and takes cognizance of the levels of understanding of the child.
25. So, the convict though he may have been exercising his parental responsibility, the reason for the outlawing of corporal punishment of children became clear when his child died. An adult hitting a child in anger may not exercise restraint and cause grievous harm, whose impact may be permanent injury/a fatality .
26. The family of the convict presented what I call: Mitigation: the lived reality of the convict presented to Court live
27. This matter was in my first cause list at Eldama Ravine. When I finally found the court’s entrance, there was a lady standing near there with two children one of whom she was carrying . I had no idea she was coming to court as the court is snug among other government offices.
28. When I entered the court room I noted that one whole bench was occupied children. I asked the court assistant whether we had a children matter I had missed out. The answer was no. I asked who was with the children. A man walked out and came back with a lady who was carrying a child. The lady spoke and said the children were hers. She had come with them to see their father, who turned out to be the convict in this case. That she was his wife. That they had forgiven him.
29. I called the children officer to conduct the social inquiry on the welfare of the children and told the mother not to bring them to court again. It was not necessary.
30. The report was filed on 15 th April 2026. It gives a blanket report of what the children said: generally, that they had come to court by choice because they strongly wanted their father back. He had been on bond until he was found guilty of this offence. The report indicated their youngest child was barely 4 months old, the next one was 1 year and 7 months, the rest in grade 3, grade 5, grade 6. grade 7. grade 9. and form 3. That these children risked falling out of school.
31. The postmortem clearly sets out the injuries that the child sustained . They were extensive. The postmortem stated “the convict person subjected beating on his child as a way of disciplining for correction purpose after it was alleged that the deceased has stolen someone’s money and other valuables and the child succumbed in the process. ”Cause of death was “Acute head injury with multiple generalized soft tissue injuries due to blunt force secondary to assault. ”The body also had other injuries in the body, bruises and a dislocated right hip joint evidence that of a beating. The convict is remorseful. He lost his first born perhaps in the desire that he would not raise a child who would steal from the neighbours. A sentence should take into account all the circumstances of the offence, in this case the trial Judge noted that the convict’s conduct after the death of the child demonstrated poor judgment and an attempt to conceal the assault but he had no intention to kill.
32. I have carefully considered the submissions, the authorities cited , the pre-sentence report, the authorities cited.
33. A custodial sentence in my carefully considered view would not serve the purposes of sentencing. He spent some time in custody.
34. Amejuta.
35. He will live with this for the rest of his life. His family accepts his mistake and wants him back. He has 8 more children who immediately became in need of care and protection when their brother died and when their father was found guilty and convicted for his killing.
36. Does the convict posse any threat to his other children?
37. The Pre-sentence report and the children officer’s report paint him as a good father. The trial judge also found that this was as a result of exercise of poor judgment. It is my view that he does not posse any threat to his other children.
38. The convicted person will benefit from a probation order that includes his getting counselling on conflict management and anger management. He will also benefit from mentorship on positive parenting, something that the PACs and SDCS are directed to work together and to avail to the convict.
39. The convict is Placed on Probation Supervision for three years on condition that the he complies with the Probation order to include the aspects in paragraph 38 above.
40. In default the convict will risk revocation of the Probation Order and the consequence of imprisonment.
RULING dated signed and delivered in open court at Nakuru Main Prison on 13 th May 2026
Mumbua T Matheka
Judge
Accused Present
CA Karanja
Ms. Esang for the accused present virtually
Ms. Omari and Ms. Kosgei for DPP
Ms. Ombaka for PACs.
FOOTNOTES
[1] Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga
[2] Chairperson - Judicial Taskforce on Sentencing
Sentence Ruling KBT HCCR. No. E025/2023 R vs Chepkurgat Cheruiyot Page 3