[2022] KEHC 15482 (KLR)

Republic v Odhiambo (Criminal Case E022 of 2022) [2022] KEHC 15482 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15482 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E022 of 2022

RE Aburili, J

November 11, 2022

Between

Republic

Prosecution

and

Lilian Achieng Odhiambo

Accused

Judgment

1. The accused person herein Lilian Achieng Odhiambo was initially charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. She took plea of not guilty on 1/9/2022 at Bungoma High Court before the recess duty Judge, Mr Justice DK Kemei.

2. Later, the accused plea bargained and reached an agreement with the prosecution who substituted the charge of murder with manslaughter contrary to section 202 as read with section 205 of the Penal Code.

3. The fresh information for manslaughter was read out to the accused after the court examined her on her understanding of the process and her rights under the Constitution and the law and she admitted the charge upon which facts were read out to her and upon her admission of the facts as being correct, this court convicted her on her own plea of guilty. The accused was represented by Mr Mshindi Advocate while the state was represented by Mr kakoi, Senior Pincipal Prosecution Counsel.

4. The facts which the prosecution read out to court and which the court found to be disclosing an offence of manslaughter and which the accused unequivocal pleaded guilty to are as follows: that after the death of her husband, the accused started cohabiting with the deceased as husband and wife. They however had many episodes of fights. On 17/8/2022, at around 10. 00 pm, the accused returned to her house and found the deceased burning pieces of mattress which she used as her beddings. A fight ensued between the two and she overpowered the deceased. Using a piece of timber, she hit the deceased severally and pushed him out of the house then she went and slept. The following morning at 10. 00 am, she found the deceased’s lifeless body outside her house and under a tree. She informed the deceased’s sister. She was arrested and escorted to Sawagongo Police Post then to Yala Police Station.

5. On 20/8/2022, a postmortem was conducted on the deceased’s body at Yala Sub County Hospital. The cause of death was found to be multi organ failure secondary to spinal cord and spinal column injury due to trauma by blunt object. The postmortem which was carried out by Dr Bruno was produced as PEx1.

6. On 23/8/2022, the accused was escorted to Siaya County Referral Hospital for mental assessment and Dr. Joan Atieno found her fit to plead and hence she was charged her with the murder of the deceased, which offence had now been reduced to Manslaughter through plea bargain.

7. The prosecution then submitted that they had no previous conviction on the accused but that she was currently facing a case of assault in Siaya CM’s court Cr Case No E529/2022 which was still ongoing. On the court asking the accused whether she had a pending assault case before court, she stated as follows: “I was charged with the offence of assault and I was convicted and placed on probation for six months which I completed in January this year 2022. ”

8. In mitigation, Mr. Mshindi advocate for the accused person submitted that the accused was remorseful. That she wanted to plead guilty to the charge on the first day of the Plea. That she is a widow who had been taken advantage of by her inheritor who used to assault her. (see Republic v Fredrick Sijeny). That the accused had 6 children. Their ages ranging 25 years, 20 years, 15 years, 13 years, 13 years (twins) and 7 years respectively. That she got married at 15 years and was on ARVs. That she was aged 40 years and that Custodial sentence will put her in serious health issues. That she is the sole breadwinner to the children as a widow, which children are now with an 80-year-old grandmother. Counsel prayed for suspended sentence subject to the court’s discretion arguing that she was provoked because her beddings were being burnt by the deceased.

9. In her own words, the accused mitigated praying for forgiveness and a saying and a non-custodial sentence saying she would not repeat the offence. On the assault charge, she stated that she assaulted Awino, a woman who alleged that the accused had stolen her phone which was a lie. She stated that she had lived with the deceased from 2021 and that her husband died in 2007 leaving her with 5 children then he got friend and together they bore one child. That she did casual jobs to fend for her family.

10. On sentence, the prosecution adopted the proposals in the signed plea bargaining Agreement.

11. The Court also heard the mother of the deceased on oath in a victim impact statement hearing. One, Dorcas Atieno Ogongo from Gem Sub County, Siriwo Sub location, Central Gem, aged 65 years old testified that the deceased Joshua Deadan Oluoch was her eldest son aged 39 years old and that he married but his wife left him. His children were left behind and they are going to university. His children are 4. 2 boys went with their mother. She lives with the 2 girls. Prior to his death, the deceased used to be a builder - casual worker. His children are aged 20 years, 18 years, 15 years and 12 years respectively. She does farming and her husband died last year.

12. She stated that she knew the accused Lilian Achieng, the wife of a neighbour who died. She stated that they did not have good relationship with her but that her son lived with her and so, as his mother, she could not prevent him from doing so.

13. She stated that although the accused had owned up to the offence, but that she inflicted so many injuries on the deceased including a broken hand, neck, teeth bites among other injuries as per the post mortem report. That she had destroyed the deceased’s house and threatened to kill him and that it was a neighbour who removed her from there.

14. The accused apologized to the deceased’s mother, children and siblings.

Sentence 15. Having considered the circumstances under which the deceased Deadan Oluoch met his death as read out in the facts admitted by the accused person, and having heard the mitigation from the accused and his counsel and Victim Impact Statement from the mother of the deceased who has been left caring for orphaned children, the deceased being her first born son. I find that the accused too had children but she over reacted and unlawfully killed the deceased using excessive force.

16. In the Plea bargain agreement, she asked for not more than 5 years imprisonment although she now pleads for non-custodial sentence. The Prosecution prayed for not less than 7 years imprisonment.

17. Taking into account all the above, and considering the accused is not a first offender as she was convicted of assault prior to and not long before the incident leading to the demise of the deceased, although punishment for Manslaughter is upto life imprisonment, the accused has pleaded guilty to the charge and saved the court time and resources and the family of the deceased the burden of travelling coming to court to narrate what transpired leading to the demise of their love one.

18. The accused appears to have uncontrollable anger which can only be tamed as an inmate. Despite her remorse, she deserves a custodial sentence as she had been given a non-custodial sentence in an assault case and no sooner had she completed her probation than she fatally assaulted the deceased.

19. I have considered her age and responsibilities to her children and her health status. I exercise discretion and sentence her to serve five years imprisonment to be calculated from the date of her arrest as she has been in custody since her arrest until now.

20. I so order. Right of appeal explained. This file is closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 11TH DAY OF NOVEMBER, 2022. R. E. ABURILIJUDGE