[2023] KEHC 27093 (KLR)

Republic v Okumiah (Criminal Case E014 of 2023) [2023] KEHC 27093 (KLR) (14 December 2023) (Sentence)

Neutral citation: [2023] KEHC 27093 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Case E014 of 2023

JN Kamau, J

December 14, 2023

Between

Republic

State

and

Elphas Malema Okumiah

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 14th December 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 are that on 9th September 2023, Elphas Malema (the Accused person herein), a boda boda operator, bought two (2) kgs of sugar. He left the house. When he came back later, he found that his son, Donald Malema (the deceased herein) had poured the sugar in dirty water. He caned the deceased severely and left to pick a customer. When he returned to the house at 2200 hours, he found the deceased had died.

3. He then called his uncle Caleb Opucha and aksed him to inform the Village elder. The deceased was taken to Puche Mortuary. On 12th September 2023 at around 1700 hours, officers lay an ambush for the Accused person and arrested him. He was then charged with the offence before court.

4. The Postmortem examination that was carried out on 26th September 2023 showed that the cause of the deceased’s death was circulatory collapse secondary to blunt force trauma following assault. The Postmortem Report dated 26th September 2023 was tendered in evidence and marked as Exhibit 1.

5. Having entered into a Plea Agreement, the Accused person urged this court to sentence him to one (1) year. On its part, the State recommended a sentence of seven (7) years imprisonment.

6. In his mitigation, the Accused person told this court that he was a first offender and was remorseful for having committed the offence. He stated that he wished to change and had learnt that anger was not a solution to everything.

7. He added that he came from a humble family and that he was the sole breadwinner of his mother and grandmother. He pointed out that he had three (3) other young children that he wished to take care of. He urged this court to give him a non- custodial sentence, which the State did not object to.

8. According to the Pre-Sentence Report of Benard Mwembe, Probation officer Vihiga dated 16th November 2023 and filed on 17th November 2023, the Accused person was thirty one (31) years of age having been born on 31st December 1992. He dropped out of school after sitting his Kenya Certificate of Primary Education (KCPE) due to financial constraints. He had three (3) children with his wife but she left with them. The deceased was a child from a past relationship and he had taken him from his mother three and a half (3 ½) months prior to the said incident.

9. His family lived in abject poverty but there was no criminal history within the family. He used to engage in boda boda business and did menial jobs to supplement his income. He never used to smoke or take alcohol. He attended the Church of God at Esirabe.

10. The aforesaid Pre-Sentence Report showed that the mother to the deceased brought him to stay with the Accused person. The deceased was not in good health and was epileptic. The Accused person stated that he intended to discipline him for making a mistake. The sugar he spilt was intended for a Chama meeting. He admitted having beaten him with a stick.

11. He was very remorseful for what transpired as he never intended to kill him and had suffered greatly while in custody. He was traumatised by the incident and was anxious. He urged this court to release him on non-custodial sentence so that he could take care of his other children.

12. The deceased’s mother was shocked by the incident. She never attended the deceased’s funeral. She had left the deceased with her aging parents who then took him to his father. She disappeared and could not be traced. Her family had lost interest in the case and were non-committal on the fate of the Accused person.

13. The Accused person’s family was anxious to know his fate. His mother, who he supported from his boda boda business, was ready to welcome him home on a non-custodial sentence and requested that the court exercises leniency on him. He was loved by people as they knew him as a polite and well behaved person, a view that was shared by the community.

14. He had the goodwill of the community. The Area Chief, Village elder and the headman all vouched for his good behaviour and were not against him being released on a non-custodial sentence.

15. According to the Probation Officer, the Accused person had strong social links. He was a low risk offender and did not lead a criminal lifestyle. There was a general feeling that he would be easily reintegrated in the community. He recommended that the Accused person be considered for a probation sentence of three (3) years during which time he would be empowered to become a responsible and law abiding citizen.

16. 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.

17. It was important 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.

18. The sentence also had to be one that was hinged on retributive justice for the secondary victims.

19. Although the Accused person had never been charged with any offence prior to the incident, was polite, well behaved, he had the goodwill of his family and the community and the circumstances of the case showed that he was disciplining the deceased, he used excessive force to discipline a child aged ten (10) years for pouring two (2) kg sugar in dirty water.

20. The aforesaid Postmortem Report showed that the deceased had marked peripheral and central palor which indicated that he may have lost blood. He had extensive contusions on both upper and lower limbs, posterior and lateral trunk and lower anterior abdomen and extensive abrasions.

21. There was contusion of the lateral chest and froth. His stomach was distended by yellowish liquid. He had frontal scalp contusion and mild subdural haemorrhage. He had moderate cerebral edema in the spinal cord. He must have gone through so much pain and suffered greatly before he died because he was literally beaten on the whole body for pouring two (2) kg sugar in dirty water. He was defenceless against his own father who beat him mercilessly.

22. The nature of injuries was more than what would have been expected in a disciplinary matter and could only have resulted in his death. Had the death been from a singular stroke in an area that was not sensitive and he died, this court could have perhaps been persuaded to have viewed his death as a misadventure and meted out a lighter sentence. Justice not only needed to be done but it had to be seen to be done.

23. It was necessary that the court take into account the three (3) objectives of deterrence, retribution and denunciation of his offence at the time of sentencing him.

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

Disposition 25. 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 when he was first arraigned in court on September 27, 2023 to December 12, 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).

26. Orders accordingly.

DATED AND DELIVERED AT VIHIGA THIS 14TH DAY OF DECEMBER, 2023. J. KAMAUJUDGE