[2017] KEHC 1599 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CRIMINAL CASE NO.33 OF 2016

REPUBLIC.......................................................PROSECUTOR

VERSUS

SHADRACK OLTUATI SAYIORI.............................ACCUSED

SENTENCE

1. SHADRACK OLTUATI SAYIORI, the accused herein was initially charged with the offence of Murder contrary to Section 203 as read with section 204 of the Penal Code. By a plea bargain agreement made on 12th July 2017 between the accused and the state, the said charge was reduced a lesser charge of manslaughter contrary to Section 202 as read with section 205 of the Penal Code.

2. The particulars are that on 22nd December 2016 at Keshwek village in Transmara West Sub-County in Narok County unlawfully caused the death of JOSEPH NANGAMA.

3. The facts of the case, as narrated by Mr. Otieno Counsel for the state, were that the deceased and the accused were brothers and that on 22nd December 2012, their father Talala Ole Nangama secured the services of a land surveyor to assist him sub-divide his land between his two wives. The accused came back home and found the surveyor, his brothers and father having a conversation in the house. The accused then demanded to know from the surveyor who had authorized him to sub-divide the land but no sooner had the surveyor answered him than he drew a knife and charged towards the surveyor while shouting at the top of his voice. The surveyor took to his heels with the accused in hot pursuit but luckily, the accused could not catch up with surveyor who outran him to safety. Upon returning home after the chase, the accused found his brothers and father standing outside the house and he started shouting at them before unleashing the knife once again and stabbing one of his brothers JOSEPH NANGAMA, the deceased herein, in the stomach. Their father tried to intervene by holding the accused, but he turned on him and stabbed him on the chest. The accused also stabbed his other brother PAUL SAIYORI on the hand before he was disarmed after which he escaped from the scene.

4. The deceased, JOSEPH NANGAMA, who had been stabbed on the stomach was rushed to hospital but was unfortunately pronounced dead on arrival.

5. In mitigation, Mr. Okemwa, learned counsel for the accused submitted that he was a first offender, was married to 2 wives and had a total of 4 children. Mr. Okemwa pleaded for leniency on behalf of the accused whom he stated, acted in the heat of the moment when he learnt about the land survey and sub-division that had been carried out in his absence.

6. The probation officer’s report filed on 17th November, 2017 recommends a non-custodial sentence for the accused. The probation officer observed that a dispute over the subdivision of family land led to the physical confrontation that led to the death of the deceased. The victim impact assessment report filed on 21st November 2017, on the other hand, speaks of a different tale. The accused’s own close relatives are very reluctant to have him in their midst citing his violent past record and fear for their own lives.

7. I have carefully considered the circumstances under which the accused killed his own bother, the deceased herein, and I find no justification whatsoever for his actions. The facts of the case show that the accused was in a murderous rage and was out to kill everyone beginning with the surveyor who literally escaped death, by the skin of his teeth as the accused’s first salvo was aimed at him. The accused then turned on members of his family and stabbed everyone on site including his own father whose only ‘mistake’, according to the accused, was to invite a surveyor to sub-divide his own land among his 2 wives. Accused’s unbriddled anger led to the death of an innocent person and like Cain of the Bible, the blood of his brother will weigh on his conscience for the rest of his life. Manslaughter is a serious offence that attracts a maximum of life sentence upon conviction.

8. Having regard to the brutal manner in which the accused attacked the deceased, the mitigation tendered by counsel for the accused and the probation officer’s report and the victim impact assessment report I am convinced that the offence committed by the accused calls for a custodial sentence.

9. Consequently, I sentence the accused to 15 years imprisonment which sentence shall run from 7th February 2017 when the accused first appeared in court.

Dated, signed and delivered in open court this 30th day of November, 2017

HON. W. OKWANY

JUDGE

In the presence of:

Mr. Otieno for the State

Mr. Bigogo for Accused

Mr. Omwoyo: court clerk