[2023] KEHC 26738 (KLR)

Republic v Omukhunja (Criminal Case E004 of 2023) [2023] KEHC 26738 (KLR) (11 December 2023) (Sentence)

Neutral citation: [2023] KEHC 26738 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Case E004 of 2023

JN Kamau, J

December 11, 2023

Between

Republic

Prosecutor

and

Shem Omukhunja

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 28th September 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 11th February 2023 at around 7. 00 am, Daniel Oluoch (the deceased) went out of his house but came back running and hid. He was being chased by his two (2) brothers, Ben and Shem (the Accused herein). They broke the house and after finding him at his hideout, they dragged him outside, beat him and cut him all over his body with a jembe.

3. The deceased’s wife, Jacinta Amati raised an alarm. The deceased’s mother, Monica Ayiso, came and he informed her that both Benson and the Accused person had assaulted him. The deceased’s mother reported the incident to the Area Assistant Chief who in turn notified the police at Embali Police Station. Members of the public arrested the Accused person and took him to Embali Police Station.

4. The deceased was rushed to Yala Sub-County Hospital where he died while undergoing treatment. The postmortem examination was carried out on 24th February 2023. The cause of death was established to have been severe brain injury and haemorrhaegic shock secondary to assault by a sharp object. The Postmortem Report dated 24th February 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 five (5) years. On its part, the State recommended a sentence of ten (10) years imprisonment.

6. In his mitigation, the Accused person did not entirely agree with how his reputation had been taken by the society. He pointed out that this court had the discretion to make a determination of the matter. On its part, the State left the matter to court.

7. According to the Pre-Sentence Report of Benard Mwembe, Probation Officer Vihiga dated 4th December 2023 and filed on 6th December 2023, the Accused person was aged forty (40) years. He dropped out of school in class four (4) after his parents were unable to support him in school. He was sickly and that prior to the incident he earned a living as a hired farm labourer. He regretted having committed the offence and sought leniency of the court.

8. His family viewed him as a very violent person who was quick tempered. He had assaulted his mother several times. At one point, he was said to have left a live electric wire hanging over her house with the intention of burning it down. He had also threatened her with death whenever she tried to correct him from his bad ways. At another point, he sold the family cow and used the proceeds to buy drugs and alcohol.

9. Together with his brothers, they were envious of the close relationship she had with the deceased. She was deeply hurt by his death as he assisted her financially from his boda boda business. She feared for her life and hated the Accused person with a vengeance for the incident and the manner he used to beat her together with his wife. His mother did not therefore wish for him to be given a non-custodial sentence.

10. The community viewed him as a very violent person who had a penchant for creating disturbance of peace. He was thus seen as a bad element and a trouble maker. He was involved in criminal activities and his family was fed up. They had threatened to banish his mother if he was released on a non-custodial sentence.

11. According to the DCIO Luanda, he had a bad track record as he always beat his mother and wife. He was reputed to be a wild and dangerous man and not welcome to the society on a non-custodial sentence.

12. According to the aforesaid Pre-Sentence Report, on the material date, the Accused person and Benson were digging an area where their mother usually tethered the cow. The deceased intervened. As they were not happy with his intervention, they chased him to his house, dragged him out and descended on him with a jembe. As a result, they broke both his legs above his knees, broke his backbone, injured the middle of his head and cut him several times with the jembe. In view of the negative Pre-Sentence Report, the Probation Officer did not recommend a non-custodial sentence.

13. 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.

14. 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.

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

16. Although the Accused person had sought leniency, it was clear that he and his brother killed their own brother without any provocation. It was irrespective that they did not like the deceased and in particular the Accused person because he felt that his mother favoured him. The nature of the injuries the deceased sustained showed the malice that the Accused person had and showed his intention of killing him. As the Probation Officer said, the deceased must have died a harrowing death, killed by his own blood brothers.

17. Killing of a family member is an abomination in the society and that explains why the Accused person’s family and community did not want him released on a non-custodial sentence. Justice not only needed to be done but it had to be seen to be done.

18. 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.

19. Having considered the facts of this case and the Accused person’s mitigation, this court came to the firm conclusion that a sentence of eighteen (18) years would be suitable and adequate herein.

Disposition 20. Accordingly, it is hereby directed that the Accused person be and is hereby sentenced to eighteen (18) years imprisonment to run from today. The period he spent in custody from when he was first arraigned in court on 2nd March 2023 to 10th December 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).

21. Orders accordingly.

DATED and DELIVERED at VIHIGA this 11th day of December 2023. J. KAMAUJUDGE