[2022] KEHC 11597 (KLR)
The court found that the accused, Austine Otieno Odhiambo, was convicted of murder after a full trial. The accused's claim of self-defence was raised only at the mitigation stage and was not supported by the nature of the injuries inflicted on the deceased, which were severe and inconsistent with self-defence. The...
Source-derived case information.
- Citation
- [2022] KEHC 11597 (KLR)
- Parties
- Applicant: Republic of Kenya; Defendant: Austine Otieno Odhiambo alias Wuod Othialo; Defendant: Joseph Odhiambo Were alias Were
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E028 of 2021
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- conviction and sentence
- Judges
- RE Aburili
- Legal Topics
- Murder, Sentencing Principles, Self Defence, Mitigation, Victim Impact Statement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
Austine Otieno Odhiambo alias Wuod Othialo
Defendant
Joseph Odhiambo Were alias Were
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused should be sentenced to death or a custodial sentence for the offence of murder.
- 2 Whether the accused's claim of self-defence is credible and affects sentencing.
- 3 What mitigating and aggravating factors should influence the sentence imposed.
Ratio Decidendi
The court found that the accused, Austine Otieno Odhiambo, was convicted of murder after a full trial. The accused's claim of self-defence was raised only at the mitigation stage and was not supported by the nature of the injuries inflicted on the deceased, which were severe and inconsistent with self-defence. The court considered the accused's age, lack of previous criminal record, and remorse, but also weighed the brutality of the offence and the impact on the victim's family. Applying the sentencing principles from the Muruatetu case, the court exercised its discretion and imposed a custodial sentence of fifty years' imprisonment, rather than the death penalty, to reflect both the...
Court Disposition
conviction and sentence
Orders
- The accused Austine Otieno Odhiambo is sentenced to fifty (50) years imprisonment to be calculated from the date of his arrest on 8/7/2021.
- Right of appeal to the Court of Appeal within 14 days explained.
Full Case Text
Judgment text and source record
29 paragraphs
State v Austine Otieno Odhiambo alias Wuod Othialo & another (Criminal Case E028 of 2021) [2022] KEHC 11597 (KLR) (30 June 2022) (Ruling)
Neutral citation: [2022] KEHC 11597 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Case E028 of 2021
RE Aburili, J
June 30, 2022
Between
State
Prosecution
and
Austine Otieno Odhiambo alias Wuod Othialo
1st Accused
Joseph Odhiambo Were alias Were
2nd Accused
Ruling
1. The accused person Austine Otieno Odhiambo alias Wuod Othialo was on 29/6/2022 convicted of the offence of Murder contrary to section 203 as read with section 204 of the Penal Code after finding him guilty of the offence of Murder as charged.
2. Due to network (internet challenges), the court had to adjourn for mitigation and sentence today as Mr. Oduol Advocate for the accused person was appearing virtually. Mr. Oduol and his client have mitigated.
3. The accused is a first offender as no previous criminal records have been filed. He is remorseful and seeks the court’s leniency. He seeks for a non-custodial sentence. He regrets the offence. He apologizes to the family of the deceased. He now claims that the deceased attacked him after waylaying him on the road and after they quarreled at a chang’aa den and that he acted in self defence but he overpowered the deceased. He is 27 years old.
4. The deceased’s mother Sophia Akinyi Onyango has given her Victim Impact Statement on oath saying the deceased was her first born son and he was a widower, he left a daughter who is now at the University. The mother declines any apology from the convict because she believes the accused is a serial killer who has not been caught before. That last aspect has no proof before this court, nonetheless.
5. That said, a precious life was lost in the hands of a very young person who acted quite viciously and cut the deceased on his neck. The cut is so deep, from the photographs produced in court that it runs across the right side of the chest below the right clavicle through and according to PW5, Dr. Juma Gabriel, it measures 15 cm by 20cm. The cut also severed internal carotid vein and exposes the right jugular vein.
6. Those are not the kind of injuries that could have been inflicted in self defence as belatedly claimed by the convict herein. The accused acted mercilessly. He deserves severe punishment. Live and let live.
7. Punishment for Murder is death. However, this is not mandatory in view of the sentencing principles espoused in the Francis Muruatetu Karioko & Another Versus Republic [2017]eKLR.
8. This court has discretion in sentencing, having regard to mitigations and circumstances under which the offence was committed. The accused throughout the trial denied that he ever unlawfully killed the deceased. In mitigation, he raises self defence which, even if the court was to accept, is too late. In addition, the injuries sustained by the deceased do not support that defence.
9. The accused is between 26-27 years old and is unmarried. There is no evidence that he has any obligations or responsibilities to third parties. He killed an innocent man. He is an irresponsible young man. He deserves a long custodial sentence.
10. I hereby exercise discretion and sentence the accused person Austine Otieno Odhiambo to serve fifty (50) years imprisonment to be calculated from the date of his arrest on 8/7/2021. I so order.
11. Right of Appeal 14 days to the Court of Appeal explained.
12. File is closed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA THIS 30TH DAY OF JUNE, 2022R.E. ABURILIJUDGE