[2022] KEHC 13536 (KLR)
The court found that although the offence of murder carries a death sentence, the circumstances of the case, including the youthfulness of the convicts, their remorse, lack of prior criminal records, and the context of the confrontation, justified a departure from the mandatory death penalty. Applying the principles...
Source-derived case information.
- Citation
- [2022] KEHC 13536 (KLR)
- Parties
- Applicant: State; Defendant: Daniel Ojwang Anyama; Defendant: Francis Otieno Otieno; Defendant: GOA; Defendant: JOO
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E025 of 2021
- Procedural Posture
- Criminal Case / Sentencing Ruling After Conviction for Murder
- Outcome
- All four accused persons sentenced to three years probation for murder; 3rd and 4th accused to serve one year at Nairobi Probation Hostel, 1st and 2nd accused to serve non-custodial probation under supervision.
- Judges
- RE Aburili
- Legal Topics
- Murder Sentencing, Probation Orders, Mitigation, Youthful Offenders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
State
Applicant
Daniel Ojwang Anyama
Defendant
Francis Otieno Otieno
Defendant
GOA
Defendant
JOO
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling After Conviction for Murder
Legal Issues
- 1 Whether the mandatory death sentence for murder should be imposed on the convicts in light of their mitigation and circumstances.
- 2 What is the appropriate sentence for the four convicted persons given their ages, remorse, and the circumstances of the offence.
Ratio Decidendi
The court found that although the offence of murder carries a death sentence, the circumstances of the case, including the youthfulness of the convicts, their remorse, lack of prior criminal records, and the context of the confrontation, justified a departure from the mandatory death penalty. Applying the principles from the Francis Muruatetu case and the Sentencing Policy Guidelines, the court determined that a custodial sentence was not appropriate. Instead, the court imposed probation sentences, with the 3rd and 4th accused (both aged 18) required to serve part of their probation in a probation hostel, and the 1st and 2nd accused to serve non-custodial probation under supervision. The...
Court Disposition
All four accused persons sentenced to three years probation for murder; 3rd and 4th accused to serve one year at Nairobi Probation Hostel, 1st and 2nd accused to serve non-custodial probation under supervision.
Orders
- Each accused/convict is sentenced to three (3) years probation.
- The 3rd and 4th accused shall each serve one year probation at Nairobi Probation Hostel.
Full Case Text
Judgment text and source record
40 paragraphs
State v Anyama & 3 others (Criminal Case E025 of 2021) [2022] KEHC 13536 (KLR) (19 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13536 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Case E025 of 2021
RE Aburili, J
September 19, 2022
Between
State
Prosecution
and
Daniel Ojwang Anyama
1st Accused
Francis Otieno Otieno
2nd Accused
GOA
3rd Accused
JOO
4th Accused
Ruling
1. The four accused persons herein Daniel Ojwang Anyama, Francis Otieno Otieno, GOA and JOO were on 17/8/2022 convicted of the Murder of the deceased Clinton Otieno Omondi.
2. Their counsel mitigated on their behalf and they were also allowed to mitigate on their own upon which this court ordered for Presentence Report which have now been filed on 15/9/2022 on each of the convicts, which I have considered.
3. The 1st accused Daniel Ojwang is aged 34 years. He is married with three children all minors. He is a first offender and pleads for leniency. The local administration say that he is law abiding save for this case. He was a fisherman from which he fended for his family and the offence occurred in the course of his job as a fisherman. He is said to be a responsible husband and father.
4. From the Presentence Report, he is said to be remorseful and that he committed the offence upon finding the deceased and his crew had stolen their fishing gears i.e. lamps and that in the process, the scuffle ensured leading to the deceased losing his life. He mitigated saying they had no evil mind when they assaulted the deceased and was sorry to the family of the deceased.
5. The 2nd convict Francis Otieno Otieno too mitigated regretting the incident and that they had no bad blood with those who stole their fishing gears from their boat.
6. That he cares for his siblings and prayed for leniency. He is 27 years old according to the Presentence Report. He is married with 4 children who are all minors. He is a first offender and well behaved. He regrets the offence saying he did not know that the scuffle would lead to the death of the deceased.
7. The 3rd convict GOA is aged 18 years old, born in 2003. He dropped out of school in class seven when he joined fishing in Wichlum. He is a first offender and is said to be well behaved. His father died. He mitigated that he helps his sickly mother. He prayed for leniency.
8. The 4th convict JOO is aged 18 years. He is orphaned and lives with his grandparents who are sickly. He prays for leniency saying he never intended to kill the deceased. He dropped out of school in class seven. He comes from the same village as the 3rd convict.
9. The Prosecution submitted that there are many murder incidents at beaches and the lakeside with the fishermen taking the law into their own hands hence the court should impose deterrent sentences to send a message to the fishermen that they are subject to the law.
10. I have also considered the report on the family of the deceased COO who was survived by his mother as his father pre-deceased him 10 years ago. He has a young sister who is in class four.
11. He dropped out of school in class eight and joined fishing. He was not married but had a child. He was born in 1996.
12. Having considered all the above mitigation, Presentence reports on each convict and the situation of the deceased’s family and submissions by the Prosecution Counsel, I observe that all the 4 accused persons are young people aged between 18 years and 34 years. The offence occurred when they had a fatal confrontation with the deceased and his crew when they suspected the deceased to have stolen the fishing lamps in the lake. The accused persons however applied excessive force in trying to arrest the deceased and his crew and as a result, unlawfully killed the deceased, whose companions survived death narrowly.
13. I have considered the fact that the deceased left behind a family comprising his mother, sister and child.
14. I have also considered the circumstances under which the offence herein was committed and the ages of the convicts herein, who are all young people.
15. Punishment of Murder is death. However, this is not mandatory. The convicts are remorseful and regret the offence.
16. Taking into account the principles set out in the Francis Muruatetu Vs Republic (2017) eKLR case and the purposes and objects of sentencing as stipulated in the Judiciary Sentencing Policy Guidelines, I hereby sentence each of the accused/convicts to serve three (3) years on probation.
17. However, owing to the young ages of the 3rd and 4th accused persons being 18 years old, I hereby order that of the three years’ probation, they shall each serve one year probation at the Nairobi Probation Hostel. The 1st and 2nd accused persons shall each serve non-custodial probation sentences of 3years to be closely supervised by the Probation Officers, Siaya County/Rarieda, Bondo Sub County and in breach of the terms of probation, they shall each be arrested and brought before this court for custodial sentencing.
18. I so order.
19. File closed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA THIS 19TH DAY OF SEPTEMBER, 2022R.E. ABURILIJUDGE