[2024] KEHC 742 (KLR)
The court considered the statutory maximum for manslaughter, the unconstitutionality of the death penalty and life imprisonment as interpreted by superior courts, and the specific facts of the case. The convict was found to have given inconsistent accounts regarding the offence, undermining claims of genuine...
Source-derived case information.
- Citation
- [2024] KEHC 742 (KLR)
- Parties
- Applicant: Republic; Defendant: Samwel Ombima Buruk
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E016 of 2021
- Procedural Posture
- Criminal Case / Sentencing Ruling After Conviction
- Outcome
- convicted and sentenced to 25 years imprisonment
- Judges
- WM Musyoka
- Legal Topics
- Manslaughter, Sentencing Principles, Penal Code Interpretation, Remorse and Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samwel Ombima Buruk
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling After Conviction
Legal Issues
- 1 What is the appropriate sentence for the convict found guilty of manslaughter under Kenyan law.
- 2 How should the court weigh the convict's antecedents, remorse, and the circumstances of the offence in sentencing.
Ratio Decidendi
The court considered the statutory maximum for manslaughter, the unconstitutionality of the death penalty and life imprisonment as interpreted by superior courts, and the specific facts of the case. The convict was found to have given inconsistent accounts regarding the offence, undermining claims of genuine remorse. Despite a favourable pre-sentence report and the convict's youth and lack of prior record, the court weighed these against the gravity of the offence—a needless loss of human life. The court determined that a custodial sentence of 25 years imprisonment was appropriate, balancing mitigation with the seriousness of the crime and the need for deterrence and justice for the victim.
Court Disposition
convicted and sentenced to 25 years imprisonment
Orders
- The convict is sentenced to 25 years imprisonment for manslaughter.
- There is a right of appeal to the Court of Appeal within 14 days.
Full Case Text
Judgment text and source record
19 paragraphs
Republic v Buruk (Criminal Case E016 of 2021) [2024] KEHC 742 (KLR) (2 February 2024) (Ruling)
Neutral citation: [2024] KEHC 742 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Case E016 of 2021
WM Musyoka, J
February 2, 2024
Between
Republic
Prosecution
and
Samwel Ombima Buruk
Accused
Ruling
1. The accused person herein was convicted on 27th November 2023, of the manslaughter of Betty Akelo, on 6th August 2022. He is now a convict. I am called upon to sentence him for that offence. I will consider the penalties available in law for that offence, the circumstances of the commission of the offence, the feelings of the family of the victim, and the antecedents of the convict.
2. The penalty prescribed by the law for murder, according to section 204 of the Penal Code, Cap 63, Laws of Kenya, is death; while that for manslaughter is a maximum of life imprisonment, by virtue of section 205 of the Penal Code. The Supreme Court decision, in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), has outlawed the death sentence, on grounds of unconstitutionality. That then leaves us with imprisonment as the next available penalty for serious felonies like murder. Life imprisonment is the maximum for manslaughter, which would mean that the penalty for murder is more or less the same as that for manslaughter. Julius Kitsao Manyeso v Republic Malindi CACRA No. 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA)(unreported) declared life imprisonment unconstitutional, and Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported) translated life imprisonment to 30 years.
3. I called for a pre-sentence report. The probation office has compiled the report, and filed it on 19th January 2024, bearing an even date. It is generally favourable. None of the persons interviewed, being the father of the convict, his former employer and the local administrator had anything negative to say about him. He has no previous criminal record. He is said to be remorseful. I wonder at that, given that in that report, the convict recounted, to the probation officer, a story completely different from his defence statement , and the confession that was recorded from him. In his defence, he said he had left the deceased at home, as he and PW2 escorted a visitor, and when he came back, the deceased was not at home. Her body was found in the well a day later. His confession, to the police, was that he had made sexual advances to the deceased, who rebuffed him, leading to a tussle, wherein he hit her with a fist on her head, whereupon she fell and died, and he disposed of her body, by putting it into the well. The version he told the probation officer was that he was at home with the deceased, who was washing clothes near the well, when a cow attacked her, and pushed her into the well. There can possibly be no remorse under the circumstances.
4. I have noted the circumstances of the commission of the offence, the written submissions by the Advocate for the convict in mitigation, and the pre-sentence report. I have also noted the antecedents of the convict, especially the fact that he is a young adult. I have taken all these into account, balancing them against the fact that a human being lost her life most needlessly. In the circumstances, I shall give the convict a custodial sentence, of 25 years imprisonment. There is a right of appeal to the Court of Appeal, within 14 days, of this order. Orders accordingly.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 2ND DAY OF FEBRUARY 2024W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMs. Chepkonga, instructed by the Director of Public Prosecutions, for the Republic.Mr. Oketch, Advocate for the convict.