[2013] KEHC 3385 (KLR)
The court found that the prosecution failed to prove malice aforethought necessary for a murder conviction. However, the evidence established that the accused unlawfully caused the death of the deceased in circumstances amounting to manslaughter, as he acted while intoxicated and in the heat of a confrontation after...
Source-derived case information.
- Citation
- [2013] KEHC 3385 (KLR)
- Parties
- Applicant: Republic; Defendant: Daniel Onyiego Osoro
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 125 of 2010
- Procedural Posture
- Criminal Case / Sentencing Ruling After Conviction for Manslaughter
- Outcome
- convicted of manslaughter and sentenced to probation
- Judges
- MJA Emukule
- Legal Topics
- Manslaughter, Sentencing, Probation Orders, Intoxication, Mitigating Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Daniel Onyiego Osoro
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling After Conviction for Manslaughter
Legal Issues
- 1 Whether the accused was guilty of murder or a lesser offence of manslaughter.
- 2 What sentence is appropriate given the circumstances and the Probation Report.
Ratio Decidendi
The court found that the prosecution failed to prove malice aforethought necessary for a murder conviction. However, the evidence established that the accused unlawfully caused the death of the deceased in circumstances amounting to manslaughter, as he acted while intoxicated and in the heat of a confrontation after being provoked and assaulted. The Probation Report indicated reconciliation between the families and recommended a non-custodial sentence. Considering the accused's good conduct, remorse, and the wishes of the deceased's family, the court determined that a probation sentence was appropriate. The accused was therefore sentenced to three years probation with conditions, rather...
Court Disposition
convicted of manslaughter and sentenced to probation
Orders
- The accused is sentenced to three years probation.
- The accused must report to the nearest Police Station once, on a Monday of every month.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
Criminal Case 125 of 2010 [if gte mso 9]><xml>
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REPUBLIC........................................................................................PROSECUTOR
VERSUS
DANIEL ONYIEGO OSORO......................................................................ACCUSED
RULING
The Accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63, Laws of Kenya). On the evidence, the offence of murder was not proved, but the evidence was found sufficient to prove the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code, and the Appellant was convicted of that offence. The punishment for the offence of manslaughter under Section 205 of the Penal Code is life imprisonment.
Before sentencing the accused, the court called for a Probation Report to establish the accused's background, including his family, personal history, the circumstances of the offence, and sentiments by the family of the deceased.
The Probation Report POR/13/16, filed in court on 11. 04. 2013, records the family of the deceased stating that the entire incident was unfortunate, and one that was not meant to happen, that -
“the two families have already reconciled with the help of the Area Chief, and that the family of the deceased have relocated to Dundori in Bahati North District, that they wish the offender the best and they have no problem with him being released on a non-custodial sentence.”
The circumstances are described concisely in the evidence PW1, PW2 and PW7 as summarised at p.1 of the judgment. The date was 8. 12. 2011, the time was 8 p.m. the accused visited the home of PW7, Michael Mwangi, where there was a circumcision ceremony. The deceased, Joseph Kamau Ngugi, told the accused that being a non-Kikuyu he (the accused) was not welcome at the ceremony.The accused who was drunk insisted on entering the room forcing the deceased and others to throw him out.After a short while the accused returned, and again, the deceased and his colleagues John Ndirangu (PW1) and Joseph Kariuki Waweru (PW2) once more forcibly ejected him. The Probation Report adds that -
“as they were trying to eject him forcibly, they also assaulted him and in the event of defending himself he grabbed the knife which he used to stab the deceased, and then ran away.”
In the circumstances described in the judgment and the Probation Report, I accept that the whole incident was wholly unfortunate.Indeed as the family of the deceased say, it was unplanned but remains regrettable.
The Probation Report reiterates that the accused was caught in an unfortunate situation, that he is well spoken of by his neighbours, and generally of good conduct.
I have considered the evidence as recorded and Judgment by the Hon. Mr. Justice Ouko, now Judge of Appeal, as well as the Probation Report. I accept that this was indeed an unfortunate incident.The accused was however drunk.That is a situation he must watch out against. I therefore put the accused to three (3) years probation, and he must report to the nearest Police Station once, on a Monday of every month, and in default he will be liable to serve a term of imprisonment for three (3) years.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 10th day of May, 2013
M. J. ANYARA EMUKULE
JUDGE
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