[2023] KEHC 25950 (KLR)

Republic v Okumbo (Criminal Case E004 of 2021) [2023] KEHC 25950 (KLR) (30 November 2023) (Sentence)

Neutral citation: [2023] KEHC 25950 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Case E004 of 2021

JN Kamau, J

November 30, 2023

Between

Republic

Prosecutor

and

Titus Akasa Inwani Okumbo

Accused

Sentence

1. The Accused person was initially charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code cap 63 (Laws of Kenya). He entered into a plea agreement on November 27, 2023 whereupon this court convicted him of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

2. The facts of the case were that on June 4, 2021, Peter Mbeya (the deceased herein) had gone to graze his cows and he lost his panga. On June 5, 2021, his children reported that they had seen his lost panga with their neighbour, Titus Akasa (the accused person). The deceased went and asked the Accused person about his panga but he denied. The deceased then asked him if he could borrow the panga. The Accused person gave him a panga which had a different handle. He took the panga and kept it and waited for the village elder to determine the case.

3. On June 9, 2021, the accused person assaulted him with a sickle and stone on the head causing him to bleed. He went home to get first aid and reported again to the village elder later that evening. He then informed his wife that he was going to visit his parents.

4. When Harriet Nyangweso was walking back home the same evening, she saw a person lying in the compound. She called the deceased’s wife and upon checking, they found it was the deceased. He had a dep cut on the collar bone and had bled a lot. He was not talking or breathing. Next to him were two (2) different shoes, one belonging to him and the other belonging to the Accused person.

5. The sub-chief was informed and he called the police who took the deceased’s body to the hospital. The postmortem which was carried out on June 16, 2021. The Postmortem Report indicated that the cause of the deceased’s death was respiratory failure secondary to penetrative chest injury following assault.

6. On June 10, 2021, the accused person surrendered to Luanda police station. After investigations, he was charged with the offence. The Postmortem Report dated June 16, 2021 was produced as evidence in the case and marked as Exhibit 1.

7. Having entered into a Plea Agreement, the Accused person urged this court to sentence him to five (5) years imprisonment. On its part, the State recommended a sentence of ten (10) years imprisonment.

8. In his mitigation, the Accused person regretted his actions and loss of the deceased’s life which he asserted explained why he quickly entered into a plea agreement. He pointed out that the delay in expediting the Plea Agreement was occasioned by lack of counsel to act for him but that he had on his own notified the Prosecution of his desire to plead guilty to the lesser offence of manslaughter.

9. He averred that he was a family man with a wife and children who relied on him. He stated that he had learnt his lesson and the need to control his anger. He wished to have second shot at life so that he could be an example to the community as he continued fending for his family. He urged this court to consider the period he had spent in custody while the trial was going on as part of his sentence.

10. On its part, the Prosecution indicated that it did not have his previous records and asked this court to treat him as a first offender.

11. According to the Pre-Sentence Report of Michael Matekwa Probation Officer Vihiga that was dated May 15, 2023 and filed on May 19, 2023, the Accused person was said to have been aged forty one (41) years of age. He was married with two (2) children. He was the last born in a family of seven (7) children. He was unable to further his education and dropped out of school at Standard Eight (8) as he came from a poor background.

12. His version of what happened was that a few days to the material date, the deceased borrowed his panga but he refused to return it to him. When he went to the deceased’s home to demand for it, the deceased chased him away. He then reported the matter to a village elder. The following day at about 1000 hours, he met the deceased carrying a panga. The deceased charged at him apparently infuriated that he had reported the matter to the village elder. The deceased threw the panga at him and it missed him. He fled with the deceased in hot pursuit.

13. The following day at 2000 hours, the deceased waylaid him and hit him with a rungu and he fell down. The deceased continued hitting him with the rungu and then removed a sickle knife from his pocket and cut him on the leg. He then grabbed the sickle knife from the deceased and knifed him. He lost consciousness and only heard people saying that he had killed the deceased a few hours later. He did not know where he hit him and was emphatic that he acted spontaneously and in self-defence.

14. All those who were interviewed including the local administration disagreed with his version and asserted that it was he who first attacked the deceased in the morning and later on the material night delivered a fatal blow with the sickle that he was wielding.

15. Although there was reference to him having been convicted, there were no previous records. His family was apprehensive of him being released on a non-custodial sentence as the community was still very hostile against him. It also said that when he came back from Naivasha where he used to work, he was linked to numerous criminal activities, which the community and the local administration also alluded to. The local administration was also not in favour of a non-custodial sentence being meted out upon the Accused person as he was now considered as an outcast and his house was demolished.

16. The victim’s family was still traumatised by the killing of their breadwinner and harboured great hatred against him. This had severed relations between his family and that of the victim. The victim’s wife pointed out that the accused person had threatened the deceased a few days before the actualising his threats on the material night.

17. The aforesaid pre-sentence report showed that although the Accused person still blamed the deceased for the altercation, he regretted the action and was willing to abide by the dictates of culture and community if he was granted a non-custodial sentence.

18. Notably, sentencing is one of the most intricate aspects of trial. Indeed, a trial does not end unless a sentence has been meted out. The principle of sentencing is fairness, justice, proportionality and commitment to public safety. The main objectives of sentencing are retribution, incapacitation, deterrence, rehabilitation and reparation. The Sentencing Policy Guidelines in Kenya have added community protection and denunciation as sentencing objectives. The objectives are not mutually exclusive and can overlap.

19. This court noted that the facts the accused person admitted to during the recording of the Plea Agreement were different from those in the Pre-Sentence report. However, for purposes of sentencing, this court was inclined to accept the version that was set out by the Prosecution as the same was supported by several people who were interviewed by the Probation Office.

20. The aforesaid Pre-Sentence Report painted him as a man who was aggressive and violent. He may have heard an altercation with the deceased about the panga but killing him was way out of proportion as a resolution of whatever differences they may have had between them. He killed the deceased in cold blood after waylaying him twice on the material day. The penetrative chest injury that was indicated in the Postmortem Report dated 16th June 2021 showed that the stab wound was well intended to cause maximum injury to the deceased. His excessive anger and irrational behaviour could not be deemed to having been acting in self-defence.

21. It was important that the accused person be deterred from committing similar acts in future. It was also necessary that the sentence communicate to the community, condemnation of his criminal act. The sentence would indirectly send a strong signal to deter would be offenders from committing such an offence. The sentence also had to one that was hinged on retributive justice for the secondary victims. Justice not only needed to be done but it had to be seen to be done.

22. If the court did not take into account the three (3) objectives of deterrence, retribution and denunciation of his offence at the time of sentencing him, chances of the Accused person being reintegrated in the society would be next to impossible as there were possibilities of being harmed.

23. Having considered the facts of this case and the Accused person’s mitigation, this court to the firm conclusion that a sentence of ten (10) years would be suitable and adequate herein.

24. Accordingly, it is hereby directed that the Accused person be and is hereby sentenced to ten (10) years imprisonment to run from today. The period he spent in custody from the date when he was first arraigned in court on June 28, 2021 until November 29, 2023 be and is hereby taken into account while computing his sentence in line with section 333(2) of the Criminal Procedure Code cap 75 (Laws of Kenya).

25. Orders accordingly.

DATED AND DELIVERED AT VIHIGA THIS 30TH DAY OF NOVEMBER 2023J. KAMAUJUDGEHCCRC NO E004 OF 2021 Page 2