[2023] KEHC 23044 (KLR)

Republic v Omindo (Criminal Case E006 of 2021) [2023] KEHC 23044 (KLR) (5 October 2023) (Sentence)

Neutral citation: [2023] KEHC 23044 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Case E006 of 2021

JN Kamau, J

October 5, 2023

Between

Republic

Prosecutor

and

Samuel Omindo

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 July 31, 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 August 20, 2021 at Enzaro village, South Maragoli, David Obege (deceased) left home to attend a friend’s funeral. He passed through the compound of the home of Samuel Omindo (Accused person). A quarrel ensued between them and the Accused person hit him on the head causing him deep cut wounds. The deceased was left bleeding on the roadside where children saw him and reported.

3. One Festo Otee heard of the incident and rushed to the scene where he caused the deceased to be taken to the dispensary. The deceased passed on while receiving treatment. The Assistant Chief who had responded to a call from a member of the community confirmed the death and called the police. The police took the deceased’s body to Vihiga County Referral Hospital Mortuary for autopsy. The Postmortem indicated that the cause of the deceased’s death was intracranial haemorrhage due to deep cut wounds.

4. On August 24, 2021, the Assistant Chief managed to arrest the Accused person. After the investigations were conducted, the Accused person was charged with the offence before court. A panga produced as an exhibit and marked as Exhibit 1. The Postmortem dated August 24, 2021 was tendered as evidence marked as Exhibit 2. The Government Analysist Report by P.L Kweyu dated October 14, 2021 was tendered as evidence and marked as Exhibit 3.

5. 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 seven (7) years imprisonment.

6. In his mitigation, the Accused person stated that he was remorseful. He said that he was elderly aged sixty-three (63) years and that he was a father of four (4) children but with no wife. He added that before he was arrested, his children depended on him. Two (2) of his children who were in court when he was mitigating said that since their father was arrested, they had gone through a hard time and prayed that the court be lenient on him. The Accused person urged this court to consider the period he spent in prison and police custody be considered. He pointed out that that was approximately two (2) years as he was arrested on August 20, 2021.

7. The Prosecution did not have his previous records and requested this court to treat him as a first offender.

8. According to the Pre-Sentence Report of Benard Mwembe, Probation Officer Vihiga County Office that was dated September 25, 2023 and filed on September 28, 2023, the Accused person and the deceased were cousins. The Accused person narrated that on the material day of the incident, he was looking after cattle at about 1. 00 pm when the deceased came to his house and insulted and threatened him with a panga. The Accused person then hit him with a rungu, wrestled the panga from him and cut him twice on the head. The Accused person said that he was remorseful for having acted out of anger and provocation.

9. On the other hand, the Probation Office established that the Accused person and the deceased had a toxic relationship and that on the material date, the Accused person killed the deceased just for greeting him. The Probation Officer noted that the Accused person was not remorseful and that his version of what transpired was different from what actually happened.

10. The deceased’s wife was still bitter with the Accused person for having killed the deceased for no apparent reason. She had not forgiven him and was now making and selling mats to eke a living.

11. The community and local administration said that the Accused person was a bhang smoker, very stubborn, noisy, disagreeable and never at peace with neighbours. He was said to have had a long list of unreported felonies. The community was still hostile and were not accommodative of his release on a non-custodial sentence. The Probation Office did not therefore find him suitable to consider him for a non-custodial sentence.

12. 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.

13. This court noted that the facts of the case to which he admitted were correct were similar to those of the community on what really transpired on the material day. There was nothing to suggest that the deceased provoked the Accused person warranting him to hit him with a panga. There was no doubt that he intended to kill the deceased.

14. It was therefore necessary that any punishment that was meted to the Accused person deter him from committing similar action in future.

15. It was also 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.

16. The sentence also had to one that was hinged on retributive justice for the secondary victims. The secondary victims were left without a husband and father for no apparent reason. His death was unnecessary and unprovoked. Justice not only needed to be done but it had to be seen to be done.

17. 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.

18. The circumstances of the case herein led this court to conclude that a non-custodial sentence was not suitable herein.

19. Having considered the facts of this case and the Accused person’s mitigation, this court to the firm conclusion that a sentence of twelve (12) years would be suitable and adequate herein.

20. Accordingly, it is hereby directed that the Accused person be and is hereby sentenced to twelve (12) years imprisonment to run from today. The period he spent from when he was first arraigned in court on September 23, 2021 to October 4, 2023 be and is hereby taken into account in line with Section 333(2) of theCriminal Procedure Code Cap 75 (Laws of Kenya) while computing his sentence.

21. Orders accordingly.

DATED AND DELIVERED AT VIHIGA THIS 5TH DAY OF OCTOBER 2023J. KAMAUJUDGE