[2015] KEHC 1865 (KLR)
The court found that the accused, having pleaded guilty to manslaughter under a plea bargain, was entitled to mitigation. The court considered the circumstances of the offence, including the heated quarrel and the accused's use of excessive force, but also weighed the remorse shown, the forgiveness by both families,...
Source-derived case information.
- Citation
- [2015] KEHC 1865 (KLR)
- Parties
- Applicant: Republic; Defendant: Charles Ongeni Okemwa alias David
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 45 of 2014
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Accused sentenced to two years non-custodial sentence under probation supervision.
- Judges
- WA Okwany
- Legal Topics
- Manslaughter, Plea Bargain, Sentencing Principles, Mitigation, Probation, Self Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Charles Ongeni Okemwa alias David
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused was guilty of manslaughter as per the plea bargain agreement.
- 2 What is the appropriate sentence for the accused given the circumstances and mitigation presented.
Ratio Decidendi
The court found that the accused, having pleaded guilty to manslaughter under a plea bargain, was entitled to mitigation. The court considered the circumstances of the offence, including the heated quarrel and the accused's use of excessive force, but also weighed the remorse shown, the forgiveness by both families, and the hardship faced by the accused's dependants. The period already spent in custody was deemed sufficient punishment, and a non-custodial sentence was appropriate to allow the accused to reintegrate into society under supervision. The court thus imposed a two-year non-custodial sentence with probation supervision.
Court Disposition
Accused sentenced to two years non-custodial sentence under probation supervision.
Orders
- The accused is sentenced to two years non-custodial sentence under close supervision of the area probation officer.
- The accused shall be released from custody and reintegrated into the community.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 45 OF 2014
REPUBLIC ………………………………………….……………...PROSECUTOR
VERSUS
CHARLES ONGENI OKEMWA alias DAVID…………………………ACCUSED
SENTENCE
1) The accused person herein CHARLES ONGENI OKEMWA, was initially charged with the offence of murder contrary to Section 203as read with Section204 of the Penal Code.
2) By a plea bargain agreement entered into on the 17th July 2015 between the accused person and the state, the said charge was reduced to manslaughter contrary to Section 202as read withSection 205 of the Penal Code.
3) The particulars of the charge were that on 27th March 2014 at Nyachogochogo village, Kegogi Sub-location in Nyamira North District within Nyamira County unlawfully caused the death of DUKE NYABUTI OKEMWA.
4) The accused person pleaded guilty to the said charge and was consequently convicted on his own plea of guilty.
5) The facts leading to the commission of the offence were that on 27th March 2014, the accused arrived at his home and found his younger brother (the deceased herein), quarrelling with his wife. The deceased started abusing the accused and a fight ensued leading to the accused stabbing the deceased in the stomach and thus killing him instantly.
6) A post mortem report produced in court as exhibit established the cause of death as cardio-pulmonary arrest due to deep stab wound to the right kidney.
7) In mitigation, Mr. Ondari, counsel for the accused submitted that the accused was a family man with 2 wives and 7 children who all depend on him. Mr. Ondari added that the accused acted in self-defense and was remorseful for his actions. He pleaded that the accused be given a non-custodial sentence to enable him fend for his family.
8) A pre-sentence and victim impact assessment report was sought for by the court before sentencing and the same was filed on 23rd September 2015. The said report reveals that the accused’s family and community at large have no objection to him being released back to the society on a non-custodial sentence as they have forgiven him. According to the Probation Officer’s report, even the victim’s (deceased’s) wife has forgiven the accused and she is sympathetic to the accused’s children who have suffered a great deal since his incarceration.
9) I have taken into account the circumstances under which the offence was committed. The deceased and accused were involved in a heated quarrel which led to a fight which would have resulted to either of them getting hurt or killed as was the case. I note that the accused person, used excessive force, to wit, a knife to stab his own brother which action he deeply regrets.
10) I have taken into account that the accused’s family together with the victim’s family have forgiven him and further the fact that he has young children to take care of. I have further taken into account the fact that the accused has been in custody since March 2014 and that the period of incarceration is adequate lesson to him to tame his anger and reflect on his life and that of his family.
11) Accordingly, I sentence the accused person herein, CHARLES ONGENI OKEMWAto two (2) years non-custodial sentence during which he will be closely supervised by the probation officer of his area.
12) It is so ordered.
Signed, Datedand Delivered on this 28th day of October, 2015.
HON. W. A. OKWANY
JUDGE
In the Presence of:
Mr. Boiyon for State
Mr. Kaburi for Ondari for Accused
Omuga: Court clerk