[2024] KEHC 4411 (KLR)
The court held that the statutory requirement to seek the views of the victim’s family and to prepare a victim impact statement before sentencing is mandatory and cannot be objected to by the defence. The court found no prejudice to the remaining accused if the exhibits are held by the investigating officer pending...
Source-derived case information.
- Citation
- [2024] KEHC 4411 (KLR)
- Parties
- Applicant: Republic; Defendant: Evans Michori Kebwaro; Defendant: Kevin Omondi Otieno; Defendant: Josphat Simiyu Juma; Defendant: Julius Omondi Otieno; Defendant: Dennis Alusiola Mmbolo; Defendant: Isaac Kinyanjui Ng’Anga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E040 of 2022
- Procedural Posture
- Criminal Case / Ruling on Prosecution Application Regarding Plea Bargain and Custody of Exhibits
- Outcome
- Prosecution's application allowed with directions.
- Judges
- SM Mohochi
- Legal Topics
- Plea Bargaining, Victim Impact Statement, Exhibit Custody, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Evans Michori Kebwaro
Defendant
Kevin Omondi Otieno
Defendant
Josphat Simiyu Juma
Defendant
Julius Omondi Otieno
Defendant
Dennis Alusiola Mmbolo
Defendant
Isaac Kinyanjui Ng’Anga
Defendant
Procedural Posture
Criminal Case / Ruling on Prosecution Application Regarding Plea Bargain and Custody of Exhibits
Legal Issues
- 1 Whether the sentence for the 1st accused should be held in abeyance pending fulfillment of plea bargain obligations.
- 2 Whether the prosecution is entitled to have exhibits returned to the investigating officer for safe custody before trial continuation.
- 3 Whether the preparation of a victim impact statement is mandatory before sentencing.
Ratio Decidendi
The court held that the statutory requirement to seek the views of the victim’s family and to prepare a victim impact statement before sentencing is mandatory and cannot be objected to by the defence. The court found no prejudice to the remaining accused if the exhibits are held by the investigating officer pending trial. The court balanced the rights of the accused and the prosecution, allowing the prosecution's application with directions to ensure the plea bargain process for the 1st accused does not delay the main trial. The court fixed dates for mitigation, sentencing, and continuation of the trial, ensuring compliance with statutory requirements and fair trial rights.
Court Disposition
Prosecution's application allowed with directions.
Orders
- Exhibits 1(a–j), 2, 3, 4, and 5 to be released to the investigating officer for safe custody pending trial.
- Investigating officer to conclude plea bargaining obligations with the 1st accused within 30 days.
Full Case Text
Judgment text and source record
34 paragraphs
Republic v Kebwaro & 5 others (Criminal Case E040 of 2022) [2024] KEHC 4411 (KLR) (29 April 2024) (Ruling)
Neutral citation: [2024] KEHC 4411 (KLR)
Republic of Kenya
In the High Court at Nakuru
Criminal Case E040 of 2022
SM Mohochi, J
April 29, 2024
Between
Republic
Prosecution
and
Evans Michori Kebwaro
1st Accused
Kevin Omondi Otieno
2nd Accused
Josphat Simiyu Juma
3rd Accused
Julius Omondi Otieno
4th Accused
Dennis Alusiola Mmbolo
5th Accused
Isaac Kinyanjui Ng’Anga
6th Accused
Ruling
1. This is a ruling following conclusion of plea bargain entered into by the 1st accused person and following which the advocates for accused two, accused three, accused four, accused five, and accused six opposed an application by the prosecution to have the sentence held in abeyance until fulfillment of the plea bargaining obligations by the accused which includes the following: -i.Recording of witness statements and testifying for the prosecution.ii.Return of all the exhibits produced Exhibit 1 (a)- (j) – Exhibit 5 to the investigating officer for custody and to be produced in this trial as it proceeds.iii.A preparation of the pre-sentence victim impact statement. The prosecution requested for 30 days before the trial hearing dates may be fixed.
2. The views of the victim’s family must be sought in every plea bargain Section 137 (c) of the Criminal Procedure Code and Section 9 (1) (c) of the Victims Protection Act.
3. The purpose of the Court calling for victim impact statement is to enrich sentencing by equipping the Court with information relating to the deceased and the impact on the victim family following the demise. This is not an issue that defence counsel for accused two, accused three, accused four, accused five, and accused six can object to. The statutory requirement is couched in mandatory terms.
4. This Court is alive to the fair trial rights of the accused to mitigate and in this instance the Court would ordinarily accord accused one an opportunity to prepare and mitigate which would not occur today.
5. On the converse the defence counsel opposed the application on the grounds of delay in the hearing on the case relating to their respective clients.
6. With regards to the prosecutions application for release of exhibits produced for safe custody of the investigating officer this Court is of the considered opinion that in view of the main trial not yet commencing it will be prudent to have the exhibits held by the investigating officer until continuation of the trial. I am unpersuaded as to what prejudice shall be occasioned on accused two, accused three, accused four, accused five, and accused six should this Court allow the investigation officer to keep the exhibits to await commencement of the trial.
7. This Court is determined to balance the rights of the accused and those of the prosecution.
8. In this particular instance this Court is of the view that a hearing date should be fixed, together with a mention date for mitigation and sentencing of accused one. This Court accordingly allows the application by the prosecution on the following terms: -i.That the Exhibits 1(a – j), 2, 3, 4, and 5 shall be released back to the investigating officer for safe custody to await continuation of the trial.ii.The investigating officer is directed to conclude the plea bargaining obligations with the Accused One within 30 days from today.iii.This Court makes an order that Accused 1 shall be held by DCI Nakuru North as he fulfils the plea bargain obligations.iv.The Probation department to prepare and file a victim impact statement within 30 days from today.v.This Court shall fix a mention date where Accused One shall mitigate and the Court shall sentence prior to the continuation of the trial as scheduled.
9. This Court thus proceeds to fix the further hearing dates together with the mention date such that the plea bargain by the 1st Accused shall not delay the trial in any way.Mention for mitigation and sentencing shall be on the 12th June, 2024. Hearing shall be on the 17th July, 2024.
Signed, Dated and Delivered Virtually at Nakuruthis 29th April 2024________________________Mohochi S.MJUDGEIn the presence of:Court Assistant – ScholaProsecutor – JackyAccusedPage 3 of 3