[2022] KEHC 13912 (KLR)

Republic v Ochieng (Criminal Case 80 of 2019) [2022] KEHC 13912 (KLR) (Crim) (6 October 2022) (Sentence)

Neutral citation: [2022] KEHC 13912 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 80 of 2019

LN Mutende, J

October 6, 2022

Between

Republic

Prosecutor

and

Jack Odinga Ochieng

Accused

Sentence

1. Jack Odinga Ochieng, the accused, had been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, but, following a plea-bargaining arrangement with the prosecution as per the plea-bargaining agreement dated September 21, 2021 that was adopted as an order of this court pursuant to section 137H of the Criminal Procedure Code he changed plea. In the result, he was convicted of a lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

2. The facts of the case are that on the November 24, 2019, the accused was asleep in his house at Silanga slums, Laini Saba, Kibera,when he and other tenants heard a loud bang outside. They went out to check only to find a group of four( 4) men that were unknown to them. The first individual (deceased) grabbed his neck and a fight ensued. They fought within the compound whereby the accused retreated to his house and picked a knife which he used to stab the deceased on the neck. He pulled his body all over the compound and left it there. At 0500 hours, the accused woke up Mary Milka Namasobo, and informed her that he had killed the deceased.

3. A report was made to Highrise Police Station. The police visited the scene and found the deceased’s mortal remains that were subsequently moved to the City mortuary. A postmortem was conducted on November 26, 2019, and the cause of death confirmed to be a head injury due to blunt force trauma. The murder weapon that was recovered was adduced as evidence.

4. There having been no previous records, the accused was treated as a first offender. In mitigation, the accused through the firm of Gacheri Nyagah Advocates, submitted pursuant to section 329 of the Criminal Procedure Code. It was urged that the accused, a young man aged 28 years who defended himself was a useful member of the society and a breadwinner of his nuclear and extended family. That while in remand for three years, he has pursued courses to improve both morally, socially and academically. That he has converted to Christianity and has been baptized. And, that, he is deeply remorseful, therefore, prays for a non-custodial sentence.

5. In order for this court to reach an informed sentence, it called for a pre-sentence report. The report was not specific as to who gave views of the family of the victim, but, the community allegedly gave views. The probation officer, Mr Mire gave general remarks without stating who in particular gave the information. But, it is stated that the community of Kibra residents allege that the family of the accused have a criminal history as his mother has an assault case before court. That following the incident the inhabitants burnt down the house of the accused, an act that prompted his family to move away from the area. And to date the community members are still angry and pray for a punitive sentence.

6. Section 205 of the Penal Code stipulates that:"Any person who commits the felony of manslaughter is liable to life imprisonment."

7. I have been called upon to consider granting the accused a non-custodial sentence. Principles of sentencing include: Deterring the offender from re-offending; removing the offender from the society to prevent another crime being committed; and, providing reparation to the harm done to the victim or community. It is fair that the sentence be imposed depending on circumstances in which the offence was committed.

8. The accused having agreed to voluntarily plead and waive the right to full trial, saved court’s time. The victim was a young adult of 33 years and the accused is equally young, aged 28 years. Although the accused has expressed remorse, and is a first offender, it is apparent that he used a knife to injure the deceased, after he was prevailed upon by a witness to leave him. His action has left the community agitated, this calls for removal of the accused from the community for security reasons.

15. Section 333(2)of the CPCprovides thus:Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

16. The accused has spent two years nine months in remand custody and has urged that he has been rehabilitated, but, the probation officer has not addressed this court on the efforts, if any, or successful rehabilitation in the period he has been in remand.

17. In the case of Omuse vs R (2009) KLR 214, the court held that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and the proper exercise of discretion in sentencing which requires the court to consider that fact and circumstances of the case in their entirety before settling for any given sentence.

18. Taking all these into consideration and the fact that no reconciliation has taken place and there would be nothing wrong with the accused being rehabilitated under the custody of the correctional facilities. That would be the best place to meet all applicable objectives of sentencing which include deterrence, retribution and reformation alluded to herein above. This will also ensure justice for the victim is served.

19. For reasons given, I sentence the accused to ten (10) years imprisonment, a sentence that will be effective from the date of arraignment, December 10, 2019.

20. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 6TH DAY OF OCTOBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:_AccusedMs. Dela for the StateMs. Nyagah G. for AccusedCourt Assistant - Mutai