[2016] KEHC 4800 (KLR)
The court found that, given the 1st and 3rd accused had pleaded guilty to manslaughter, were first offenders, had shown remorse, and had already spent two years in custody, a non-custodial sentence was appropriate. The court also considered the advanced age of the 1st accused and the unclear motive and roles in the...
Source-derived case information.
- Citation
- [2016] KEHC 4800 (KLR)
- Parties
- Applicant: Republic; Defendant: Jovensia Gechemba Ratemo; Defendant: Joel Maeba Onsati; Defendant: George Nyakundi alias Guto; Defendant: Charles Makori Ontonyi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 29 of 2014
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- 1st and 3rd accused sentenced to one year non-custodial sentence under probation supervision; 2nd and 4th accused to proceed to trial.
- Judges
- WA Okwany
- Legal Topics
- Manslaughter, Plea Bargain, Sentencing Principles, Mitigation, Probation, Custodial Vs Non Custodial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jovensia Gechemba Ratemo
Defendant
Joel Maeba Onsati
Defendant
George Nyakundi alias Guto
Defendant
Charles Makori Ontonyi
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused persons should be sentenced to a custodial or non-custodial sentence for the offence of manslaughter.
- 2 What weight should be given to the mitigation factors including age, remorse, time spent in custody, and intoxication at the time of the offence.
Ratio Decidendi
The court found that, given the 1st and 3rd accused had pleaded guilty to manslaughter, were first offenders, had shown remorse, and had already spent two years in custody, a non-custodial sentence was appropriate. The court also considered the advanced age of the 1st accused and the unclear motive and roles in the offence. The absence of the probation report did not preclude sentencing, as the court was satisfied that the interests of justice would be served by placing the accused under probation supervision for one year, rather than imposing a custodial sentence. The 2nd and 4th accused, having pleaded not guilty, would proceed to trial on the original murder charge.
Court Disposition
1st and 3rd accused sentenced to one year non-custodial sentence under probation supervision; 2nd and 4th accused to proceed to trial.
Orders
- Accused 1 (Jovensia Ratemo) and Accused 3 (George Nyakundi alias Guto) are sentenced to one year non-custodial sentence under the supervision of the probation officer of their area.
- The case for Accused 2 (Joel Maeba Onsati) and Accused 4 (Charles Makori Ontonyi) shall be mentioned on 4th July 2016.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL CASE NO. 29 OF 2014
REPUBLIC................................................................PROSECUTOR
VERSUS
JOVENSIA GECHEMBA RATEMO........................1ST ACCUSED
JOEL MAEBA ONSATI...........................................2ND ACCUSED
GEORGE NYAKUNDI alias GUTO.........................3RD ACCUSED
CHARLES MAKORI ONTONYI..............................4TH ACCUSED
SENTENCE
1. The accused persons herein, YOVENSIA RATEMO, JOEL MAEBA ONSATI, GEORGE NYAKUNDI and CHARLES MAKORI ONTONYIwere initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. By a plea bargain agreement made on 20th January, 2016 between the accused persons and the state, the said charge was reduced to manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.
2. The particulars of the charge are that the night of 17th February, 2014 and 18th February, 2014 at unknown time at Bonyangatanyi sub-location in Kisii Central District within Kisii County in the Republic of Kenya, unlawfully caused the death of WIDEN MAEBA NYAATA.
3. Despite their initial agreement to plead guilty to a lesser charge of manslaughter, the 2nd and 4th accused pleaded not guilty to the said charge while the 1st and 3rd accused pleaded guilty and were therefore convicted on their own plea of guilty while he 2nd and 4th accused now await their trial on the initial charge of murder.
4. The facts of the case were stated by Miss Mochama counsel for the state, revolve around a drinking spree, in which the deceased and the accused persons were engaged in on the night of 17th February, 2014. The following morning after the said drinking spree, the dead body of the deceased was discovered in a farm, 10 meters away from the house of the 1st accused who happens to be the wife of the 2nd accused. Investigations conducted by the police after the incident revealed that there were blood stains on the clothing of the 2nd accused and in the house of the 1st accused that was suspected to be the blood of the deceased.
5. Postmortem examination conducted on the body of the deceased showed that the cause of death was cardio respiratory arrest secondary to asphyxia due to strangulation.
6. In mitigation, Mr. Kaburi submitted that the 1st and 3rd accused were first offenders, were remorseful for the accidental death of the deceased and had learnt a lesson to keep off crime in the two years that they have been in custody while awaiting their trial. Mr. Kaburi added that the 1st accused is aged 72 years while the 3rd accused is her nephew aged 40 years. Counsel for the accused persons pleaded for their being given a non-custodial sentence to enable them go back to their homes and take care of their families.
7. This court asked for the Probation Officer’s social enquiry and pre-sentencing report to enable it arrive at the most appropriate and fair sentence in respect to the accused persons.
8. Unfortunately, as at the time of preparing this ruling on sentence, the probation officer had not filed the said report despite the case being mentioned several times to find out if the said report was ready.
9. Be that as it may, I have considered the circumstances under which the offence is alleged to have taken place. While it is not very clear, from the said facts, the motive behind the killing of the deceased and the role played by each of the accused persons, the bottom-line is that the accused 1 and 3, have pleaded guilty to the lesser charge of manslaughter.
10. I have considered the mitigation tendered by Mr. Kaburi counsel for the accused, the fact that the 1st accused is aged 72 years, the fact that they were drunk at the time of the offence and have been in custody for the last 2 years while awaiting their trial. I am of the view that a non-custodial sentence is the most appropriate sentence in this case.
11. Consequently, I sentence accused 1 and 3 herein, YOVENCIA RATEMO and GEORGE NYAKUNDI alias GUTO to one (1) year non-custodial sentence during which period they will be under the supervision of the probation officer of their area. The case for the 2nd and 4th accused shall be mentioned on 4th July 2016.
Delivered, dated and signed in at Kisii on 11th day of MAY, 2016.
W.A. OKWANY
JUDGE
In the presence of:
Mbelete for the State
Kaburi for the Accused
Omwoyo court clerk