1. The accused herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The plea was taken on 13th February 2024 and the accused pleaded NOT GUILTY to the charge and the matter set down for hearing. Subsequently however, he entered into a Plea Bargain Agreement wherein the charge of murder was reduced to a charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The Plea Bargain Agreement dated 16th October 2024 was availed to Court on 18th November 2024.
2. From the said agreement as filed, it transpired that the accused and the deceased are siblings. That the accused is a university student. That they were orphaned at a young age and come from a very humble background mainly sustained by subsistence farming and help from the community. That of all the siblings it is only the accused who went through formal education up to university level. That the deceased sibling had been trusted with the custody of fees for the accused that had been contributed by well-wishers and that it is this money that the accused and the deceased disagreed over whereupon the accused hit the deceased with a rod and then stabbed him with a knife. The deceased sustained injuries to which he succumbed.
3. The Court in compliance with Sections 137 F, G & H and took fresh Plea on the new charge as amended pursuant to the Plea Bargain Agreement. The accused pleaded GUILTY to the amended charge and the Court convicted him accordingly. The Plea Agreement states at paragraph 13 that based on the provisions of Section 329 of the Criminal Procedure Code and Rule 13 of the ODPP Rules on Plea Agreements, the State proposes a sentence of imprisonment for a term between 3-5 years less the time spent in remand custody. That on their part, the defense shall be proposing a sentence of an initial imprisonment for a term of 3 years followed by a non- custodial sentence of one year so that re-integration can be monitored.
4. In mitigation, Counsel for the accused stated that the accused is the 2nd last born in the family and is a 2nd year student at Masinde Muliro University pursuing a Bachelor of Commerce degree course. That he was to report back to the university on the day the incident occurred and that is why they disagreed on the issue of school fees. That he is remorseful and he did not intend to kill his brother. He prays that he be given another chance so that he finishes his education and assist his other siblings. That the family has forgiven him, a traditional healing ceremony has been done and they are ready to take him back.
5. Before passing sentence, the Court sought for a Probation Pre-Sentence Report. The same dated 6th February 2025 was availed and I have perused it. It recommends a non-custodial sentence of probation for a period of 3 years. It states that there is no history of criminality in the family and that the accused rarely gets into conflict with his siblings or members of the community. That he is a hardworking, resilient and an optimistic person. That he is remorseful and states that the offence was committed out of anger due to the disagreement over his school fees.
6. The Report further states the victim left behind a wife, a six year old son Brian Kiplimo and one year old Ray Kigen and that the wife relocated back to her maiden home in Turbo but the deceased brothers are supporting the children financially. That when interviewed, the family stated that much as it is painful to lose a brother, the accused too is their younger brother in whom they have seen a promising future and as a family they have forgiven him and pray to Court to be lenient with him as they would not wish to lose another brother in jail.
7. That indeed after the commission of the offence it is his brother in fact who deferred his education for the time being from the university and that the family has been supportive to the offender and have offered him moral and emotional support. In noting that the Probation Officer’s Report had made recommendations that were contrary to the sentence indicated as agreed on during the plea bargaining process, the court under the provisions of Section 137I 2(b) of the Criminal Procedure Code Directed that the following members of the Accused Family who the Report stated had been interviewed as well as the wife of the deceased Lillian Nekesa who the Report indicated had not been interviewed be availed, and summons for their attendance were issued;
1. Daniel Kipchumba - Brother
2. Eliphas Kosgei - Brother
3. Jackline Cepkemboi – Aunt
8. They all attended court on 24th March 2024. The Court was informed that the wife of the deceased was under witness protection and had come accompanied by a Witness Protection Officer one Mr. Weldon Chesire. The Court therefore proceeded to interview her in chamber in the presence of the accused person. She was informed that the accused had entered into a plea bargain with the prosecution and that the charge he was facing had as a consequence been reduced from murder to manslaughter to which the accused pleaded guilty. The meaning and purport of a plea bargain agreement was explained to her.
9. In her response, she confirmed that indeed she had relocated from her matrimonial home with her children after the death of her husband. She stated that she was not aware of any plea bargain agreement and that she had come to court knowing that she was coming to testify on the charge of murder which to her knowledge is the charge that he was facing. She stated that she does not agree with the process of plea bargain at all and more particularly because the accused and his relatives participated in the same as a family and left her out completely and did not at all include her in the discussions.
10. She further stated that she had come to court to testify of the many instances when the accused had threatened to kill her and her late husband saying he was ready to be imprisoned for life. That both her husband and herself suffered in their matrimonial home because of the fact that of all the siblings, of the deceased, it is only him who had married a non-Kalenjin, a fact that was resented by the rest of the family members and that the accused particularly had been threatening them many times and that they went through hell. It was therefore her opinion that the accused and his siblings agreed as a family because the accused killed the wrong person because in her view given the fact of her tribe, it is her who was meant to be killed.
11. She stated that the deceased husband has now find rest and that she is fortunate to be alive. However, she stated that even so, her life is in danger because even when she was pregnant (she was in court with a baby) the accused kept threatening to stab her unborn child in her womb.
12. The accused on his part asked for her forgiveness. The other members of the family were then interviewed in open court. They confirmed that the Probation Report captured their sentiments correctly and they stated that they stood by the recommendation that the accused is deserving of probation for the reasons given in the Report. Notwithstanding the fact that in the said Report it was stated that they were providing for the wife of the deceased and his children, in court when asked in court why they did not direct the Probation Officer to the deceased wife so that she too may be interviewed during the compilation of the Report, they stated that she was not interviewed because they did not know where she was.
13. Because of these new developments, it has now come to light, that the wife of the deceased, who based on the degree of consanguinity to the deceased is actually the first in line and who therefore is the one to be considered to be the victim of the accused actions in the strict sense of the word was not at all involved in the plea bargain process from its beginning to the end.
14. She is also very vehemently opposed to this process. Seeing as this new information has to the fore after the court already adopted the plea bargain agreement between the prosecution and the defense on the presumption that all the provisions set out in Section 137 of the Criminal Procedure Code pertaining to the plea bargain process were scrupulously adhered to, now that it has turned out that the main victim being the wife of the deceased was not at all involved in the entire process, the sentencing of the accused is now hereby held in abeyance.
15. Further, to the above, the court now hereby directs that both Counsel for the State and the Counsel for the Accused make submissions on the legal implications and ramifications of the of legality of the plea bargain agreement adopted by the court on 18th November 2024 based on the provisions of Section 137 of the Criminal Procedure Code in the circumstances that have now come to light.
Read Dated and Signed at ELDORET on 5th June 2025
2. From the said agreement as filed, it transpired that the accused and the deceased are siblings. That the accused is a university student. That they were orphaned at a young age and come from a very humble background mainly sustained by subsistence farming and help from the community. That of all the siblings it is only the accused who went through formal education up to university level. That the deceased sibling had been trusted with the custody of fees for the accused that had been contributed by well-wishers and that it is this money that the accused and the deceased disagreed over whereupon the accused hit the deceased with a rod and then stabbed him with a knife. The deceased sustained injuries to which he succumbed.
3. The Court in compliance with Sections 137 F, G & H and took fresh Plea on the new charge as amended pursuant to the Plea Bargain Agreement. The accused pleaded GUILTY to the amended charge and the Court convicted him accordingly. The Plea Agreement states at paragraph 13 that based on the provisions of Section 329 of the Criminal Procedure Code and Rule 13 of the ODPP Rules on Plea Agreements, the State proposes a sentence of imprisonment for a term between 3-5 years less the time spent in remand custody. That on their part, the defense shall be proposing a sentence of an initial imprisonment for a term of 3 years followed by a non- custodial sentence of one year so that re-integration can be monitored.
4. In mitigation, Counsel for the accused stated that the accused is the 2nd last born in the family and is a 2nd year student at Masinde Muliro University pursuing a Bachelor of Commerce degree course. That he was to report back to the university on the day the incident occurred and that is why they disagreed on the issue of school fees. That he is remorseful and he did not intend to kill his brother. He prays that he be given another chance so that he finishes his education and assist his other siblings. That the family has forgiven him, a traditional healing ceremony has been done and they are ready to take him back.
5. Before passing sentence, the Court sought for a Probation Pre-Sentence Report. The same dated 6th February 2025 was availed and I have perused it. It recommends a non-custodial sentence of probation for a period of 3 years. It states that there is no history of criminality in the family and that the accused rarely gets into conflict with his siblings or members of the community. That he is a hardworking, resilient and an optimistic person. That he is remorseful and states that the offence was committed out of anger due to the disagreement over his school fees.
6. The Report further states the victim left behind a wife, a six year old son Brian Kiplimo and one year old Ray Kigen and that the wife relocated back to her maiden home in Turbo but the deceased brothers are supporting the children financially. That when interviewed, the family stated that much as it is painful to lose a brother, the accused too is their younger brother in whom they have seen a promising future and as a family they have forgiven him and pray to Court to be lenient with him as they would not wish to lose another brother in jail.
7. That indeed after the commission of the offence it is his brother in fact who deferred his education for the time being from the university and that the family has been supportive to the offender and have offered him moral and emotional support. In noting that the Probation Officer’s Report had made recommendations that were contrary to the sentence indicated as agreed on during the plea bargaining process, the court under the provisions of Section 137I 2(b) of the Criminal Procedure Code Directed that the following members of the Accused Family who the Report stated had been interviewed as well as the wife of the deceased Lillian Nekesa who the Report indicated had not been interviewed be availed, and summons for their attendance were issued;
1. Daniel Kipchumba - Brother
2. Eliphas Kosgei - Brother
3. Jackline Cepkemboi – Aunt
8. They all attended court on 24th March 2024. The Court was informed that the wife of the deceased was under witness protection and had come accompanied by a Witness Protection Officer one Mr. Weldon Chesire. The Court therefore proceeded to interview her in chamber in the presence of the accused person. She was informed that the accused had entered into a plea bargain with the prosecution and that the charge he was facing had as a consequence been reduced from murder to manslaughter to which the accused pleaded guilty. The meaning and purport of a plea bargain agreement was explained to her.
9. In her response, she confirmed that indeed she had relocated from her matrimonial home with her children after the death of her husband. She stated that she was not aware of any plea bargain agreement and that she had come to court knowing that she was coming to testify on the charge of murder which to her knowledge is the charge that he was facing. She stated that she does not agree with the process of plea bargain at all and more particularly because the accused and his relatives participated in the same as a family and left her out completely and did not at all include her in the discussions.
10. She further stated that she had come to court to testify of the many instances when the accused had threatened to kill her and her late husband saying he was ready to be imprisoned for life. That both her husband and herself suffered in their matrimonial home because of the fact that of all the siblings, of the deceased, it is only him who had married a non-Kalenjin, a fact that was resented by the rest of the family members and that the accused particularly had been threatening them many times and that they went through hell. It was therefore her opinion that the accused and his siblings agreed as a family because the accused killed the wrong person because in her view given the fact of her tribe, it is her who was meant to be killed.
11. She stated that the deceased husband has now find rest and that she is fortunate to be alive. However, she stated that even so, her life is in danger because even when she was pregnant (she was in court with a baby) the accused kept threatening to stab her unborn child in her womb.
12. The accused on his part asked for her forgiveness. The other members of the family were then interviewed in open court. They confirmed that the Probation Report captured their sentiments correctly and they stated that they stood by the recommendation that the accused is deserving of probation for the reasons given in the Report. Notwithstanding the fact that in the said Report it was stated that they were providing for the wife of the deceased and his children, in court when asked in court why they did not direct the Probation Officer to the deceased wife so that she too may be interviewed during the compilation of the Report, they stated that she was not interviewed because they did not know where she was.
13. Because of these new developments, it has now come to light, that the wife of the deceased, who based on the degree of consanguinity to the deceased is actually the first in line and who therefore is the one to be considered to be the victim of the accused actions in the strict sense of the word was not at all involved in the plea bargain process from its beginning to the end.
14. She is also very vehemently opposed to this process. Seeing as this new information has to the fore after the court already adopted the plea bargain agreement between the prosecution and the defense on the presumption that all the provisions set out in Section 137 of the Criminal Procedure Code pertaining to the plea bargain process were scrupulously adhered to, now that it has turned out that the main victim being the wife of the deceased was not at all involved in the entire process, the sentencing of the accused is now hereby held in abeyance.
15. Further, to the above, the court now hereby directs that both Counsel for the State and the Counsel for the Accused make submissions on the legal implications and ramifications of the of legality of the plea bargain agreement adopted by the court on 18th November 2024 based on the provisions of Section 137 of the Criminal Procedure Code in the circumstances that have now come to light.
Read Dated and Signed at ELDORET on 5th June 2025