[2013] KEHC 2656 (KLR)
The court found that the accused persons, a father and son, admitted to unlawfully killing the deceased during a confrontation arising from a long-standing land dispute. The facts did not support a finding of murder due to the presence of provocation and lack of premeditation. The 1st accused, being an adult, was...
Source-derived case information.
- Citation
- [2013] KEHC 2656 (KLR)
- Parties
- Applicant: Republic; Defendant: Charles Ajode Adembe; Defendant: Benard Ochieng Ajode
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Murder Case 30 of 2012
- Procedural Posture
- Murder Case / Judgment
- Outcome
- conviction for manslaughter; custodial sentence for 1st accused; probation for 2nd accused.
- Judges
- HK Chemitei
- Legal Topics
- Manslaughter, Provocation, Sentencing, Juvenile Offender
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Charles Ajode Adembe
Defendant
Benard Ochieng Ajode
Defendant
Procedural Posture
Murder Case / Judgment
Legal Issues
- 1 Whether the accused persons unlawfully killed the deceased, George Ouma Juma.
- 2 Whether the facts support a conviction for manslaughter rather than murder.
- 3 What is the appropriate sentence for each accused given their circumstances.
Ratio Decidendi
The court found that the accused persons, a father and son, admitted to unlawfully killing the deceased during a confrontation arising from a long-standing land dispute. The facts did not support a finding of murder due to the presence of provocation and lack of premeditation. The 1st accused, being an adult, was held to a higher standard of conduct and sentenced to a custodial term. The 2nd accused, a minor and student, was considered suitable for probation. The court emphasized the role of provocation and the favorable probation reports in determining the sentences.
Court Disposition
conviction for manslaughter; custodial sentence for 1st accused; probation for 2nd accused.
Orders
- The 1st accused Charles Ajode Adembe shall serve a custodial sentence of five (5) years.
- The 2nd accused Bernard Ochieng Ajode shall serve a probation period of two (2) years, supervised by the Probation Office Kisumu East.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
Murder Case 30 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
REPUBLIC …...............................................................PROSECUTOR
VERSUS
CHARLES AJODE ADEMBE.......................................1st ACCUSED
BENARD OCHIENG AJODE …...................................2nd ACCUSED
JUDGMENT
Both accused persons are charged with the offence of manslaughter. The particulars are that on the 2nd day of May 2012 at Kibigori Sub location, Nyando District within Nyanza Province unlawfully killed one George Ouma Juma.
The State had earlier own charged them with the offence of murder. Both accused persons are father and son respectively.
The facts were that both the accused persons on the material day were heading to the shamba to farm. They were carrying a panga, jembe and wooden blanks. They decided to go to the home of one Benta who had been inherited by the deceased.
While in Benta's house an argument arose over the boundary issue which had been simmering between the two families and which had not been resolved. The accused persons attacked the deceased who succumbed to the injuries while being rushed to Chemelil Hospital.
The above facts were admitted by the accused persons. The probation report which is on record showed that the 2nd accused who is aged fifteen (15) years old is a student at Kibigori Primary School in class eight (8).
The 1st accused is a peasant farmer. Both reports are favouarble to the accused persons.
From the facts read in court and admitted by the accused persons it is evidently clear that there was a long standing dispute between the accused and the deceased or one Benta. However I do not find any sufficient reason why the accused persons and in particular the 1st accused decided to go through the house of Benta on the material morning. Obviously, he knew that there was a problem of land between him and Benta and by extension the deceased. I do find that this was an act of provocation.
Beside both of them were armed with a jembe, panga and wooden blank.
Although the probation reports are favourable to both parties the 1st accused who was mature ought to have conducted himself in a mature and in a civil manner and not to provoke Benta and the deceased.
For the above reasons I shall make the following orders:-
(a)The 1st accused Charles Ajode Adembe shall serve a custodial sentence of five (5) years.
(b)The 2nd accused Bernard Ochieng Ajode shall serve a probation period of two (2) years. The same to be supervised by the Probation Office Kisumu East.
Orders accordingly.
Dated, signed and delivered at Kisumu this 7th day of May 2013.
H.K. CHEMITEI
JUDGE
In the presence of:
…...................................for State
…...................................for the Accused
HKC/aao
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