REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.27 OF 2023
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
JOSEPH KIPROTICH KIPNGOK……………….….…….. ACCUSED
JOSEPH KIPROTICH KIPNGOK was charged with murder c/s 203 as read with s. 204 of the Penal Code. It was alleged that on the night of 25 th and 26 th April 2023 at Chemoini village within Mogotio subcounty within Baringo County he murdered Selly Chetoo.
He denied the charge. The matter was heard in full and by a judgment dated 29 th November 2025 ( Ng’etich J, as she then was) the convict was found guilty of murder c/s 203 as read with s. 204 of the Penal Code.
I now have the duty to sentence the convict.
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]
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]
Sentencing must be based on the principles of fairness, justice, proportionality and commitment to public safety.
The Sentencing Policy Guidelines 2023 state the following with regard to murder:
5.2.2 The harm caused by such an offence is immeasurable. The sentence is not a measure of the value placed on the life of the victim. Therefore, the assessment of aggravating and mitigating features relating to the offence focusses on culpability. However, the victims’ family may wish to make a statement to the court about the impact of the offence.
5.2.3 In addition to the generic features contained in the GATS, (Guided Approach to Sentencing) features particularly relevant to murder may include but are not limited to:
5.2.4 Aggravating Factors in Murder Cases:
A significant degree of planning or premeditation.
The mental or physical suffering inflicted upon the victim before death.
Factors such as the type of weapon used, torture or inhuman or degrading treatment prior to death will be relevant.
The use of duress or threats to enable the offence to take place.
The vulnerability of the victim e.g., due to age or disability.
The fact that the victim was providing a public service or performing a public duty.
Multiple victims or multiple perpetrators.
Where the offence involved an abuse of trust.
The relationship between the victim and the accused should be carefully considered.
Offence was motivated by, or there was demonstrated hostility to the victim based on his or her race, gender, sex, sexual orientation (or presumed sexual orientation), pregnancy, marital status (so called ‘honour killings’ for example), health status (e.g., murder occurred because of the HIV status of the victim, or albinism), ethnicity, culture, dress, language, birth, or religious orientation (or presumed religious orientation).
A history of assaults, threats, or coercion upon the same victim. Absence of self-defence or provocation. The offence involved deliberate drugging or stupefying of the victim.
Proven abduction or kidnapping of the victim before the murder was committed. Where a demand for ransom was made, signifying a financial motive.
Concealing, destroying, or dismembering the body.
Where the murder was conducted in furtherance of a ritualistic practice such as witchcraft.
5.2.5 Mitigating features relating to murder might include:
Lack of premeditation.
The offender suffered from a mental disorder or mental disability which lowered his degree of blame. In a case of joint enterprise, the role the offender played may be lower than his co-accused. For example, in the resentencing of the Applicants in Francis Karioko Muruatetu & 6 others v Director of Public Prosecution [2019] eKLR the Judge categorised the offenders into four categories based on their culpability. The first category involved the architects of an offence e.g., those who financed the killing, the second category involves offenders who ensnared the deceased into his death, the third category is the henchmen, those who carried out the brutal killing and the fourth category involves offenders involved in the cover up of the offence by attempting to silence witnesses. The Judge sentenced the third category with the highest term of imprisonment and graduated the term down for the other categories.
That the offender was provoked.
That the offender acted to any extent in self-defence or in fear of violence.
The age of the offender.
During the Sentencing hearing Ms. Omari for prosecution submitted that
the convict was a 51 years old 1st offender who had strangled the deceased with whom he had an intimate relationship. That she died in his house, it was and the post mortem report PEX.1 confirmed the cause of death to be strangulation. That the convict attempted to pass it off as suicide but investigation revealed otherwise, as there were other injuries: 2 small bruises below her right knee, bruising on the skin around neck area, beneath a lesso tied to the neck, tied to roof to show that she died by suicide, blood, in nostrils, right ear.
She submitted that cases of femicide were on the rise and there was need for deterrence. That the conduct of the convict showed that he was not remorseful for what he had done as he tried to hide the crime.
The prosecution relied on Magoiga –vs- Republic [2025]eKLR Criminal Appeal 166/17 in which the convict who had hacked the deceased to death was sentenced to death. The prosecution submitted for life imprisonment.
Ms. Kogo for the convict submitted that she had looked at the pre-sentence report . It states that the convict was a father of 3 children, husband of 2, the sole provider of his 2 families. For the period proceedings have been on, convict has been in custody. that he had reformed, and was now a member of Christian Union in prison.
That at the time of the offence both accused and deceased were intoxicated having indulged in traditional brew on the material date. That the intoxication impaired his judgement that is why the convict maintained his innocence, she urged the court to show leniency and mercy and give him a sentence that would enable him join his family at a later date.
The convict given the chance stated :
Mimi ni naomba Koti initendee haki, mambo imeharibika nimekaa mbali na familia. Nimekaa hapa remandee miaka 3. Naomba nafasi nitumikie familia. Nipate maisha kama wengine .
I have read the Judgment.
I have carefully considered the circumstances of the offence as set out therein. The convict maintains his innocence and the Pre-sentence report states that he is not remorseful. I saw him in court. He is sorry whatever the circumstances may be . He has been in custody for the duration of the trial.
It is not disputed that both the accused and the deceased had been drinking the whole day.
I have considered the authority cited by the state Magoiga v Republic [2025] KECA 1029 (KLR) where the Court of Appeal had this to say;
Was the sentence imposed harsh, excessive, or unconstitutional? We note that the trial court imposed the death penalty on the appellant due to the gravity of the offence, which involved the deliberate and brutal murder of two human beings, including a defenceless infant. The sentence was grounded on section 204 of the Penal Code , which prescribe as ultimate the sentence of death for the offence of murder. The heinous nature of the crime and its profound impact on the victims' family weighed heavily on the court’s decision.
44.Yes, the Supreme Court in Francis Karioko Muruatetu & Another v. Republic (supra) (Muruatetu 1), declared the mandatory nature of the death penalty in murder cases unconstitutional but did not outrightly outlaw such sentence. It can still be imposed as the maximum sentence in suitable cases. It nonetheless affirmed the importance of judicial discretion in sentencing. It emphasized that courts must weigh the specific circumstances of both the offender and the offence to ensure a just outcome.
45.In this case, the trial court afforded the appellant an opportunity to present mitigation during sentencing. The appellant pleaded for leniency, citing personal circumstances and his background. However, the court found that the gravity and brutality of the offences outweighed the mitigating factors raised. The heinous manner in which the crime was committed called for no other sentence other than the death penalty which was an appropriate and proportionate in the circumstances.
46.We are satisfied that the trial court acted within the law and properly exercised its discretion in imposing the sentence. Its decision was consistent with constitutional principles, established jurisprudence, and the Sentencing Policy Guidelines (2016), which advocate for proportionality and fairness in sentencing. We find no reason to interfere with the trial court’s decision on sentence.
The circumstances of that case and this case are not quite similar despite the fact that in both , a person was killed . The reason for exercise of discretion is so that the court can weigh the nuances of each murder as none are the same, and mete the appropriate sentence. .
Having weighed the aggravating and mitigating circumstances, and the taking into account the period the convict has spent in custody the convict is sentenced to 15 years imprisonment with effect from the date of his arrest. Right of Appeal 14 days
Sentence Rendered, Dated, signed in open court at Eldama Ravine on 22 nd May 2026
Mumbua T Matheka
Judge
CA Karanja
Accused present virtually
For Accused Ms. Kogo
For the State Ms. Omari
FOOTNOTES
[1] Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga
[2] Chairperson - Judicial Taskforce on Sentencing
Sentence Ruling HCCRC E027 of 2023 Page 2 of 2
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.27 OF 2023
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
JOSEPH KIPROTICH KIPNGOK……………….….…….. ACCUSED
JOSEPH KIPROTICH KIPNGOK was charged with murder c/s 203 as read with s. 204 of the Penal Code. It was alleged that on the night of 25 th and 26 th April 2023 at Chemoini village within Mogotio subcounty within Baringo County he murdered Selly Chetoo.
He denied the charge. The matter was heard in full and by a judgment dated 29 th November 2025 ( Ng’etich J, as she then was) the convict was found guilty of murder c/s 203 as read with s. 204 of the Penal Code.
I now have the duty to sentence the convict.
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]
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]
Sentencing must be based on the principles of fairness, justice, proportionality and commitment to public safety.
The Sentencing Policy Guidelines 2023 state the following with regard to murder:
5.2.2 The harm caused by such an offence is immeasurable. The sentence is not a measure of the value placed on the life of the victim. Therefore, the assessment of aggravating and mitigating features relating to the offence focusses on culpability. However, the victims’ family may wish to make a statement to the court about the impact of the offence.
5.2.3 In addition to the generic features contained in the GATS, (Guided Approach to Sentencing) features particularly relevant to murder may include but are not limited to:
5.2.4 Aggravating Factors in Murder Cases:
A significant degree of planning or premeditation.
The mental or physical suffering inflicted upon the victim before death.
Factors such as the type of weapon used, torture or inhuman or degrading treatment prior to death will be relevant.
The use of duress or threats to enable the offence to take place.
The vulnerability of the victim e.g., due to age or disability.
The fact that the victim was providing a public service or performing a public duty.
Multiple victims or multiple perpetrators.
Where the offence involved an abuse of trust.
The relationship between the victim and the accused should be carefully considered.
Offence was motivated by, or there was demonstrated hostility to the victim based on his or her race, gender, sex, sexual orientation (or presumed sexual orientation), pregnancy, marital status (so called ‘honour killings’ for example), health status (e.g., murder occurred because of the HIV status of the victim, or albinism), ethnicity, culture, dress, language, birth, or religious orientation (or presumed religious orientation).
A history of assaults, threats, or coercion upon the same victim. Absence of self-defence or provocation. The offence involved deliberate drugging or stupefying of the victim.
Proven abduction or kidnapping of the victim before the murder was committed. Where a demand for ransom was made, signifying a financial motive.
Concealing, destroying, or dismembering the body.
Where the murder was conducted in furtherance of a ritualistic practice such as witchcraft.
5.2.5 Mitigating features relating to murder might include:
Lack of premeditation.
The offender suffered from a mental disorder or mental disability which lowered his degree of blame. In a case of joint enterprise, the role the offender played may be lower than his co-accused. For example, in the resentencing of the Applicants in Francis Karioko Muruatetu & 6 others v Director of Public Prosecution [2019] eKLR the Judge categorised the offenders into four categories based on their culpability. The first category involved the architects of an offence e.g., those who financed the killing, the second category involves offenders who ensnared the deceased into his death, the third category is the henchmen, those who carried out the brutal killing and the fourth category involves offenders involved in the cover up of the offence by attempting to silence witnesses. The Judge sentenced the third category with the highest term of imprisonment and graduated the term down for the other categories.
That the offender was provoked.
That the offender acted to any extent in self-defence or in fear of violence.
The age of the offender.
During the Sentencing hearing Ms. Omari for prosecution submitted that
the convict was a 51 years old 1st offender who had strangled the deceased with whom he had an intimate relationship. That she died in his house, it was and the post mortem report PEX.1 confirmed the cause of death to be strangulation. That the convict attempted to pass it off as suicide but investigation revealed otherwise, as there were other injuries: 2 small bruises below her right knee, bruising on the skin around neck area, beneath a lesso tied to the neck, tied to roof to show that she died by suicide, blood, in nostrils, right ear.
She submitted that cases of femicide were on the rise and there was need for deterrence. That the conduct of the convict showed that he was not remorseful for what he had done as he tried to hide the crime.
The prosecution relied on Magoiga –vs- Republic [2025]eKLR Criminal Appeal 166/17 in which the convict who had hacked the deceased to death was sentenced to death. The prosecution submitted for life imprisonment.
Ms. Kogo for the convict submitted that she had looked at the pre-sentence report . It states that the convict was a father of 3 children, husband of 2, the sole provider of his 2 families. For the period proceedings have been on, convict has been in custody. that he had reformed, and was now a member of Christian Union in prison.
That at the time of the offence both accused and deceased were intoxicated having indulged in traditional brew on the material date. That the intoxication impaired his judgement that is why the convict maintained his innocence, she urged the court to show leniency and mercy and give him a sentence that would enable him join his family at a later date.
The convict given the chance stated :
Mimi ni naomba Koti initendee haki, mambo imeharibika nimekaa mbali na familia. Nimekaa hapa remandee miaka 3. Naomba nafasi nitumikie familia. Nipate maisha kama wengine .
I have read the Judgment.
I have carefully considered the circumstances of the offence as set out therein. The convict maintains his innocence and the Pre-sentence report states that he is not remorseful. I saw him in court. He is sorry whatever the circumstances may be . He has been in custody for the duration of the trial.
It is not disputed that both the accused and the deceased had been drinking the whole day.
I have considered the authority cited by the state Magoiga v Republic [2025] KECA 1029 (KLR) where the Court of Appeal had this to say;
Was the sentence imposed harsh, excessive, or unconstitutional? We note that the trial court imposed the death penalty on the appellant due to the gravity of the offence, which involved the deliberate and brutal murder of two human beings, including a defenceless infant. The sentence was grounded on section 204 of the Penal Code , which prescribe as ultimate the sentence of death for the offence of murder. The heinous nature of the crime and its profound impact on the victims' family weighed heavily on the court’s decision.
44.Yes, the Supreme Court in Francis Karioko Muruatetu & Another v. Republic (supra) (Muruatetu 1), declared the mandatory nature of the death penalty in murder cases unconstitutional but did not outrightly outlaw such sentence. It can still be imposed as the maximum sentence in suitable cases. It nonetheless affirmed the importance of judicial discretion in sentencing. It emphasized that courts must weigh the specific circumstances of both the offender and the offence to ensure a just outcome.
45.In this case, the trial court afforded the appellant an opportunity to present mitigation during sentencing. The appellant pleaded for leniency, citing personal circumstances and his background. However, the court found that the gravity and brutality of the offences outweighed the mitigating factors raised. The heinous manner in which the crime was committed called for no other sentence other than the death penalty which was an appropriate and proportionate in the circumstances.
46.We are satisfied that the trial court acted within the law and properly exercised its discretion in imposing the sentence. Its decision was consistent with constitutional principles, established jurisprudence, and the Sentencing Policy Guidelines (2016), which advocate for proportionality and fairness in sentencing. We find no reason to interfere with the trial court’s decision on sentence.
The circumstances of that case and this case are not quite similar despite the fact that in both , a person was killed . The reason for exercise of discretion is so that the court can weigh the nuances of each murder as none are the same, and mete the appropriate sentence. .
Having weighed the aggravating and mitigating circumstances, and the taking into account the period the convict has spent in custody the convict is sentenced to 15 years imprisonment with effect from the date of his arrest. Right of Appeal 14 days
Sentence Rendered, Dated, signed in open court at Eldama Ravine on 22 nd May 2026
Mumbua T Matheka
Judge
CA Karanja
Accused present virtually
For Accused Ms. Kogo
For the State Ms. Omari
FOOTNOTES
[1] Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga
[2] Chairperson - Judicial Taskforce on Sentencing
Sentence Ruling HCCRC E027 of 2023 Page 2 of 2