REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.51 OF 2023
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
VICTOR KIPKORIR CHEPCHENG……………….….…….. ACCUSED
VICTOR KIPKORIR CHEPCHENG was charged with murder c/s 203 as read with s. 204 of the Penal Code. It was alleged that on the 15 th March 2017 at Kabiyet s location Kabiyet location Koibatek Subcounty within Baringo County he murdered Consolata Jepkemboi Rotich.
He denied the charge.
The matter was heard and determined by Ng’etich J ( as she then was) and by a Judgment dated 21 st March 2025 found the accused guilty of murder as charged and convicted him accordingly 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
It fell upon me to sentence the convict.
During the sentence hearing Ms. Omari submitted that the convict was 1 st offender. He is a young man. There were attempts of reconciliation with family of the victim. the Accused reached out. The family of deceased was no interested. The pre-sentence report was positive. She had spoken to the two family representatives of the victim family. They had been no reconciliation. That there were aggravating factors; the brutal manner in which the victim met her death and the serious injuries she suffered. She was hacked to death and from the postmortem –Pexh.1 cause of death, head injury due to a cut by sharp object.
There were 2 deep cut wounds on the head, her death was painful. she was the 1 st born in the family of 2 children. That the victim was only 30 years old, she still had like 30 years to live. the Mother was present , that she had spoken to the mother, and she was still bitter over the loss of her 1 st born child. According to her the circumstances of the case called for a of 30 years imprisonment citing Koi v Republic Cr. Appeal 278/2019 (Reported in 2025) where the Court of Appeal sustained 30 years sentence.
Mr. Kemboi for the convict submitted that the convict was a 30 year old first offender , married in 2024 with a young family. The young family he has is extremely vulnerable, his wife is not working, young child is lacking family love.
His family were all present, mother, the father, brothers, sister, uncle, aunties all in court to show the court that if he is released they are ready to support him if he is released, he has been in custody since he was convicted.
He submitted that the young man was extremely remorseful was not a threat to the community, and was assisting the community in Nation building. That his family was ready to support him.
That his family had approached the family of the deceased for reconciliation but no all the family members had forgiven the convict. he referred the court to the three Probation and Aftercare reports. That the final report was positive, majority of the family members of the deceased, the father of deceased, one of the sisters of the deceased, even the mother of deceased had forgiven the accused that he intends to complete the reconciliation from where it had stopped.
That the case began in 2017.
That the convict had the capacity to reform . He gave a background history of the convict before arrest and what he had been able to achieve pending the trial; that he was running a company called Geopin Co. Limited, where he was the sole shareholder as per the CR 12.that he had employees. He produced the company profile .That in 2017 the convict was student at TUK-Diploma in Survey, graduated, then in 2018, he did his degree – graduated in 2024 A copy of the Diploma and degree were exhibited to the court.
Counsel submitted for a non- custodial sentence, on the basis that the Probation report was positive.
The Mother of victim addressed the court. She said I am Loice Chereono Rotich. I request the court to assist me, I do not sleep. I have been unwell. We have not reconciled with this family. I do not want their help. I have been coming to court. I just want this case to come to an end. I spent kshs. 4,000/= transport, to come to sleep in a lodging here. I come from North Baringo- Kabartonjo Kaptuni. I just want the court to finish this case. I do not wish to come this court again. I do not wish to enter into any agreements
I have read through the Judgment.
The convict cut the deceased with a panga on the head twice, one cut was so deep it cut through the skull and onto the brain matter. These were vicious cuts. S. 204 of the Penal Code provides the death sentence for murder but the mandatory nature of the same was taken away by Muruatetu 1 , leaving the court with some discretion.
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.
I have carefully considered the Pre-sentence report dated 26 th January 2026. It confirms that the convict has been an exemplary citizen since committing the offence. It is persuasive and not binding. It presents a picture of the circumstances of both the accused and the victim.
However, that in itself does not take away the fact that 10 years ago he, unprovoked , viciously attacked and killed an unarmed woman. He was 21 years old, college going young man.
A life was cut short. His achievements, must cut deep when stated in the presence of the mother whose daughter’s life was cut short. The fact that the family were unable to come to any reconciliation is evidence that the impact of the offence still runs deep.
I heard counsel for the convict. he did not cite a single authority where the courts have meted a non-custodial sentence to a convict of murder. Had it not been for Muruatetu 1, the convict would be facing a mandatory sentence of death. There is no hope of reconciliation. The mother of the deceased wants nothing to do with that.
I have weighed the mitigating factors vis a vis the aggravating factors. The whole submission about the life of the convict post the offence is one mitigating factor. I have considered his age at the time of the offence.
The aggravating factors outweigh the mitigating factors. The irreparable harm caused by the death of the victim, the viciousness of the attack. The fact that there was no provocation, it was not in self defence.
In Koi v Republic [2025] KECA 1633 (KLR) in an appeal against the sentence of 30 years meted by the Judge the Court of Appeal had this to say:
Finally, on sentence, the appellant urged the Court to review the sentence terming it as excessively harsh. On the other hand, the respondent urged the Court not to disturb the sentence as it was very lenient. The appellant was sentenced to 30 years’ imprisonment for the offence of murder. Although Section 204 of the Penal Code provides for a mandatory death sentence for any person charged and convicted of the offence of murder, in Francis Karioko Muruatetu & Another vs. Republic (2017) eKLR, the Supreme Court held that the mandatory nature of the death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional as it deprived the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case.
38.The crime was committed with deliberate planning, malice, and intent to kill, resulting in the deceased’s death by strangulation, which was clearly linked to the appellant. The trial judge correctly exercised his discretion in imposing a 30-year prison term, and there is no ground to interfere with the sentence. We hold that the appeal is without merit and is dismissed in its entirety.
I am properly guided.
Taking into account the circumstances of this offence the convict is sentenced to 30 years in prison with effect from the date of conviction.
Right of Appeal 14 days
Sentence Ruling rendered, dated and signed in open court at Eldama Ravine this 22 nd May 2022
Mumbua T Matheka
Judge
CA Karanja
Accused present virtually
Mr. Kemboi for Accused
Ms. Omari for the State
FOOTNOTES
[1] Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga
[2] Chairperson - Judicial Taskforce on Sentencing
Sentence Ruling ER HCCRC E051 of 2023 Page 2 of 2
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.51 OF 2023
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
VICTOR KIPKORIR CHEPCHENG……………….….…….. ACCUSED
VICTOR KIPKORIR CHEPCHENG was charged with murder c/s 203 as read with s. 204 of the Penal Code. It was alleged that on the 15 th March 2017 at Kabiyet s location Kabiyet location Koibatek Subcounty within Baringo County he murdered Consolata Jepkemboi Rotich.
He denied the charge.
The matter was heard and determined by Ng’etich J ( as she then was) and by a Judgment dated 21 st March 2025 found the accused guilty of murder as charged and convicted him accordingly 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
It fell upon me to sentence the convict.
During the sentence hearing Ms. Omari submitted that the convict was 1 st offender. He is a young man. There were attempts of reconciliation with family of the victim. the Accused reached out. The family of deceased was no interested. The pre-sentence report was positive. She had spoken to the two family representatives of the victim family. They had been no reconciliation. That there were aggravating factors; the brutal manner in which the victim met her death and the serious injuries she suffered. She was hacked to death and from the postmortem –Pexh.1 cause of death, head injury due to a cut by sharp object.
There were 2 deep cut wounds on the head, her death was painful. she was the 1 st born in the family of 2 children. That the victim was only 30 years old, she still had like 30 years to live. the Mother was present , that she had spoken to the mother, and she was still bitter over the loss of her 1 st born child. According to her the circumstances of the case called for a of 30 years imprisonment citing Koi v Republic Cr. Appeal 278/2019 (Reported in 2025) where the Court of Appeal sustained 30 years sentence.
Mr. Kemboi for the convict submitted that the convict was a 30 year old first offender , married in 2024 with a young family. The young family he has is extremely vulnerable, his wife is not working, young child is lacking family love.
His family were all present, mother, the father, brothers, sister, uncle, aunties all in court to show the court that if he is released they are ready to support him if he is released, he has been in custody since he was convicted.
He submitted that the young man was extremely remorseful was not a threat to the community, and was assisting the community in Nation building. That his family was ready to support him.
That his family had approached the family of the deceased for reconciliation but no all the family members had forgiven the convict. he referred the court to the three Probation and Aftercare reports. That the final report was positive, majority of the family members of the deceased, the father of deceased, one of the sisters of the deceased, even the mother of deceased had forgiven the accused that he intends to complete the reconciliation from where it had stopped.
That the case began in 2017.
That the convict had the capacity to reform . He gave a background history of the convict before arrest and what he had been able to achieve pending the trial; that he was running a company called Geopin Co. Limited, where he was the sole shareholder as per the CR 12.that he had employees. He produced the company profile .That in 2017 the convict was student at TUK-Diploma in Survey, graduated, then in 2018, he did his degree – graduated in 2024 A copy of the Diploma and degree were exhibited to the court.
Counsel submitted for a non- custodial sentence, on the basis that the Probation report was positive.
The Mother of victim addressed the court. She said I am Loice Chereono Rotich. I request the court to assist me, I do not sleep. I have been unwell. We have not reconciled with this family. I do not want their help. I have been coming to court. I just want this case to come to an end. I spent kshs. 4,000/= transport, to come to sleep in a lodging here. I come from North Baringo- Kabartonjo Kaptuni. I just want the court to finish this case. I do not wish to come this court again. I do not wish to enter into any agreements
I have read through the Judgment.
The convict cut the deceased with a panga on the head twice, one cut was so deep it cut through the skull and onto the brain matter. These were vicious cuts. S. 204 of the Penal Code provides the death sentence for murder but the mandatory nature of the same was taken away by Muruatetu 1 , leaving the court with some discretion.
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.
I have carefully considered the Pre-sentence report dated 26 th January 2026. It confirms that the convict has been an exemplary citizen since committing the offence. It is persuasive and not binding. It presents a picture of the circumstances of both the accused and the victim.
However, that in itself does not take away the fact that 10 years ago he, unprovoked , viciously attacked and killed an unarmed woman. He was 21 years old, college going young man.
A life was cut short. His achievements, must cut deep when stated in the presence of the mother whose daughter’s life was cut short. The fact that the family were unable to come to any reconciliation is evidence that the impact of the offence still runs deep.
I heard counsel for the convict. he did not cite a single authority where the courts have meted a non-custodial sentence to a convict of murder. Had it not been for Muruatetu 1, the convict would be facing a mandatory sentence of death. There is no hope of reconciliation. The mother of the deceased wants nothing to do with that.
I have weighed the mitigating factors vis a vis the aggravating factors. The whole submission about the life of the convict post the offence is one mitigating factor. I have considered his age at the time of the offence.
The aggravating factors outweigh the mitigating factors. The irreparable harm caused by the death of the victim, the viciousness of the attack. The fact that there was no provocation, it was not in self defence.
In Koi v Republic [2025] KECA 1633 (KLR) in an appeal against the sentence of 30 years meted by the Judge the Court of Appeal had this to say:
Finally, on sentence, the appellant urged the Court to review the sentence terming it as excessively harsh. On the other hand, the respondent urged the Court not to disturb the sentence as it was very lenient. The appellant was sentenced to 30 years’ imprisonment for the offence of murder. Although Section 204 of the Penal Code provides for a mandatory death sentence for any person charged and convicted of the offence of murder, in Francis Karioko Muruatetu & Another vs. Republic (2017) eKLR, the Supreme Court held that the mandatory nature of the death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional as it deprived the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case.
38.The crime was committed with deliberate planning, malice, and intent to kill, resulting in the deceased’s death by strangulation, which was clearly linked to the appellant. The trial judge correctly exercised his discretion in imposing a 30-year prison term, and there is no ground to interfere with the sentence. We hold that the appeal is without merit and is dismissed in its entirety.
I am properly guided.
Taking into account the circumstances of this offence the convict is sentenced to 30 years in prison with effect from the date of conviction.
Right of Appeal 14 days
Sentence Ruling rendered, dated and signed in open court at Eldama Ravine this 22 nd May 2022
Mumbua T Matheka
Judge
CA Karanja
Accused present virtually
Mr. Kemboi for Accused
Ms. Omari for the State
FOOTNOTES
[1] Sentencing Policy Guidelines Hon Chief Justice Willy Mutunga
[2] Chairperson - Judicial Taskforce on Sentencing
Sentence Ruling ER HCCRC E051 of 2023 Page 2 of 2