[2022] KEHC 2150 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

CRIMINAL CASE NO. E031 OF 2021

CORAM: HON. R.E. ABURILI J

STATE............................................................................................PROSECUTION

VERSUS

DAVID ODHIAMBO OLOO.................................................................ACCUSED

JUDGMENT AND SENTENCE ON PLEA BARGAIN

1. The accused person herein David Odhiambo Oloo is a male adult of sound mind. He was initially charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code as per the Information dated 21st October, 2021. On 25/10/2021, the accused person pleaded not Guilty to the charge of Murder and the court fixed the hearing for 15/12/2021.

2. On the latter date, the accused person and his counsel Ms. Agina informed the court that they had formally made a request to the Prosecution for Plea bargaining. On the said date, nonetheless the hearing, could not proceed because the prosecution counsel was absent with Notice to the court, attending All Prosecution Counsels’ Conference. The court then refixed the matter for mention on 24/1/2022 for Plea bargaining purposes.

3. On 24/1/2022, the Senior Principal Prosecution counsel Mr. Kakoi notified this court that indeed his office had received a formal proposal for Plea bargain and although he had spoken to the Investigating officer, he was yet to speak to the victim’s family members. He therefore sought for time to contact the family of the victim. The matter was then fixed for mention 1/2/2022. On the latter date, the defence counsel requested for more time as she had just received the Plea Bargain Agreement from the Office of Director of Public Prosecutions and was in the process of advising her client, the accused herein.

4. The matter was then fixed for Plea bargaining hearing today 16/2/2022.

5. Today, the court was presented with an application for substitution of the charge of Murder with that of Manslaughter contrary to Section 202 as read with section 205 of the Penal Codeon account that the accused had plea bargained and was ready to take a fresh plea after signing the plea bargaining agreement with the prosecution. The court granted the application and substituted the charge of Murder with that of Manslaughter as stated above. The fresh information for Manslaughter is dated 15th February, 2022.

6. The Information for Manslaughter dated 15/12/2022 was read out to the accused person in Kiswahili language after the court took the accused through the Plea bargain process and the accused accepting unequivocally that the plea bargain process had also been explained to him by his advocate and that he had understood the same and the implications for Plea bargaining. The accused also confirmed that he was Plea bargaining voluntarily.

7. Upon the Court asking the prosecution to lay the factual basis for the Plea bargain agreement for the information of Manslaughter and the Prosecution laying the basis thereof which I recorded, the Information for manslaughter and every element thereof were stated and read out to the accused person in Kiswahili language which he responded saying upon being asked whether he admits or denies the truth of the charge. “Ni ukweli, nilimuua - it is true, I killed him”. The court then entered a Plea of guilty against the accused person for the offence of Manslaughter.

8. The Prosecution then narrated to court the facts of the case in Kiswahili as interpreted by Mr. Mboya from English which upon the accused person being asked whether the facts as narrated were correct stated, “nimeelewa hayo maelezo. Yote ni ukweli. Nakubali nilimuua marehemu George”. “I have understood those facts. They are all correct. I admit. I killed the deceased George”. This Court then convicted the accused person accordingly, on his own plea of guilty for the offence of Manslaughter contrary to section 202 of the Penal Code.

9. The brief facts upon which this court convicted the accused person for the offence of Manslaughter contrary to Section 202 of the Penal Code are as follows: That in the month of September 2021, one George Omondi approached the accused person herein David Odhiambo Oloo, asking the accused to source for assassins to eliminate the deceased George Otieno on account that the deceased was allegedly having an adulterous love affair with the wife of George Omondi. The accused then offered himself to execute the job of eliminating the deceased George Otieno at a fee and the accused and George Omondi agreed that the consideration for the job was Thirty thousand Kenya Shillings only (Kshs. 30,000/=. The accused was paid a down payment of Fifteen thousand Kenya Shillings (Kshs. 15,000/=) leaving a balance of Fifteen Thousand Kenya Shillings only (Kshs 15,000/=) and the accused person herein accepted to execute the assignment after which he was to collect the balance of fifteen thousand Kenya Shillings (Kshs. 15,000/=).

10. On 30th September 2021, the deceased George Otieno had gone to visit the accused person as the two were long term friends. The deceased did not find the accused at his home so he decided to leave. As he was getting onto his motorcycle leaving the home of the accused person, he met the accused person herein who, unknown to the deceased, had been paid to eliminate the deceased.

11. The accused armed himself with a slasher which had been cut into half, started cutting the deceased viciously on the head, limbs and chest area and all over the body. The deceased fell to the ground and sustaining serious injuries and breathed his last. The accused escaped.

12. On 2/10/2021, the accused who was suspected of the unlawful killing of the deceased was arrested. He was placed in custody and he volunteered to confess to the unlawful killing of the deceased. On 3/10/2021, Superitendant of Police Mr. Nelson Muhaya (now also deceased) RIP the DCIO Siaya Subcounty based at Siaya County Headquarters recorded the confession from the accused person herein. The confession which was made in compliance with the Confession Ruleswas signed by the accused person. The confession, accompanied by the Proforma (procedure for taking of confessions were produced as Prosecution Exhibit No. 1 (a) and 1(b).

13. The recorder of the confession made a Certificate of recording the confession and signed it as per the proforma (PEx1(b) dated 3/10/2021. The body of the deceased had been removed to Ukwala sub county Hospital. Dr. Duncan Nyabuya conducted an autopsy on the said body on 5/10/2021. He examined the body and recorded several deep cuts on the chest, head and hands.

14. As a result of the examination, Dr. Nyabuya found the cause of death to be due to severe head injury secondary to assault and injury to the lungs causing lung collapse, affecting the right side. The postmortem Report dated 5/10/2021 was produced in evidence as PEx2.

15. After investigations were carried completed and witness’ statements recorded, the accused was found to have been involved in the Murder of the deceased. He was charged with the offence of Murder contrary to Section 203 and as read with Section 204 of the Penal Code as per Information dated 21/10/2021 which charge has now been substituted with the offence of Manslaughter contrary to Section 202 as need with Section 205 of the Penal Code, for the unlawful killing of the deceased George Otieno.

16. The accused person, after the above brief facts were read out to him in Kiswahili language, he admitted to unlawfully killing the deceased. This court then convicted the accused for the offence of Manslaughter contrary to Section 202 of the Penal Code.

17. The Prosecution has stated that it has no previous criminal records on the accused and that he could be treated as first offender.

18. In mitigation, Ms. Agina counsel for the accused person submitted that the accused is a first offender, that he never intended to kill the deceased and is remorseful. He prays for leniency of this court.

19. The court allowed the accused to mitigated personally. He stated that the deceased George Otieno was his friend for a long time and was also a magician. That the accused is aged 26 years old and married with 2 children. That he never planned to kill the deceased. That he does not know why he killed the deceased. That he is a sinner and was alone when he killed the deceased. That GOD cannot forgive him that is why he confessed to unlawfully killing he deceased. He regretted making children of the deceased orphaned and his wives widowed.

20. The court then called upon victim’s 2 widows who were present in court and who were weeping as the accused was mitigating while he pointed at the said two 2 widows, Maureen Atieno Otieno and Mary Atieno. The two widows took oath and bitterly narrated how they are suffering with their respective children after the deceased, sole breadwinner for the family was killed. They are young widows aged 30 years and 31 years respectively and their parents’ inlaws died. The two widows asked the court to jail the accused. They have been left with young children aged between 17 years and one (1) year.

21. The accused then responded saying it was done! and regretted why he accepted to kill the deceased; who was his friend. He stated that he had chosen to carry his own cross.

22. I have considered the circumstances under which the deceased George Otieno was unlawfully and brutally killed. The accused was used as a gun for hire. He accepted to receive Kshs. 30,000/= in exchange for the life of a human being whom he calls his best friend, the deceased George Otieno. He says that he was alone when he killed the deceased. He is carrying his own cross. I have also considered the mitigations by the accused who is aged 26 years old and has a family. He is a first offender and regrets the offence claiming that the deceased was his friend for a long time.

23. Obviously, the accused was greedy for money, the thirty thousand Kenya shillings which he accepted as consideration for the unlawful brutal killing of his deceased “friend” reminds this court of the 30 pieces of silver that made Judas to betray his “friend” the Biblical Jesus Christ. The accused is a Judas Iscariot who betrayed his best and longtime friend George Otieno. The accused was approached with a view to getting assassins to eliminate the deceased for allegedly having an extramarital affair with someone’s wife but he instead offered himself to accomplish the job of eliminating the deceased at a fee. Is that the person who seek for the mercy of the Court? I believe that only God can forgive the accused person. There are many ways of resolving marital issues. Accepting to kill the person who seduces someone’s wife or husband is not one of the solutions. The deceased did not deserve to die such a brutal death under the hand of the accused calling himself a friend and betraying the trust that a friend had for him to waylay the deceased and hack him to death.

24. I have listened to the 2 young widows of the deceased who were weeping in court as the accused was mitigating. The widows are now left on their own and their young children are orphaned. They lost a sole breadwinner and care giver.

25. Punishment for Manslaughter upon conviction, as stipulated in Section 205 of the Penal Code, is up to life imprisonment. This is the maximum sentence. This court has discretion in sentencing. Should I exercise discretion in favour of the accused herein who was a merciless gun for hire? The accused Plea bargained from Murder to Manslaughter. The facts as read out to the court did not disclose any mitigating factor. The mitigations did not disclose and mitigating factor. The accused plotted to kill the diseased and purposively at a consideration for money. He must face the consequences of his action.

26. The Prosecution in the Plea bargain sought for a minimum of 30 years imprisonment while the defence proposed a custodial sentence of nor more than 5 years. The accused therefore saved this court the time and resources. Witnesses did not have to come to court to testify against him. However, this court is not bound by any of the proposed sentences, having explained to the accused person that the offence for which he was pleading guilty to carries up to life imprisonment upon conviction.

27. I find no mitigating circumstances in the Plea for a less severe sentence. The accused was cruel, callous, gruesome and merciless. The deceased did nothing against the accused for him to be used as a gun for hire to eliminate the deceased. The accused unlawfully killed the deceased out of greed and in his confession he even complains that he hirer had not paid him his balance of Sh. 15,000/=.

28. The accused used a deadly weapon namely, a slasher which had been cut into half to butcher the deceased. Under section 205 of the Penal Code, the maximum sentence for manslaughter is life imprisonment. It has long been a principle of sentencing that a maximum sentence should only be meted out to the worst offender under the particular section that the offender is charged. See Charo Ngumbao Gugudu v R Criminal Appeal No. 358 of 2008 [Nairobi](unreported).In addition, Courts are inclined to impose life imprisonment where a deadly weapon was used in committing the offence of manslaughter.

29. In this case, the weapon used was lethal and must have been prepared purposely for the purpose for which it was used. A slasher which was cut into two to butcher the deceased. The injuries inflicted on the deceased were extremely serious injuries. In Charo Ngumbao Gugudu v Republic [2011] eKLR,the Court of Appeal observed that:

“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is thus not proper exercise of discretion in sentencing, for the Court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence – see Ambani vs. R. [1990] KLR 161”.

30. From the post mortem report of the deceased produced as an exhibit, the injuries inflicted on the deceased were multiple cuts on the surface of his body, 3 cuts on the exterior surface of the right forearm and 2 cuts on the left forearm, both ring fingers on both arms were cut off-decapitated, deep cuts on the back and two on the anterior chest, multiple facial cuts, some on the mouth, nose and forehead and multiple cuts on the hand and frontal extending to the temporal and occipital region. The 2 cuts on the chest extended into the subcutaneous tissues and the right lung was noted to be collapsed secondary to the cuts. The head had fractures.These were deadly injuries. The accused indeed had every intention to eliminate the deceased, going by those injuries.

31. Though a first offender, the circumstances of this case do not provide any mitigation in favour of the accused person. The accused was brutal to the deceased whom he called a longtime friend. The accused person has no respect for life. The accused person has caused severe pain in the hearts and lives of the victim’s family. He deserves a long term custodial sentence. He does not deserve to live in the society where he will continue to be a gun for hire to those who want to eliminate their perceived enemies. The society must be protected from such dangerous people as the accused. This being one of the objectives of sentencing.

32. Taking all the above into account, I hereby sentence the accused person David Odhiambo Oloo to serve life imprisonment in accordance with section 205 of the Penal Code for the callous gruesome, merciless unlawful killing of the deceased George Otieno. Right of appeal guaranteed and explained, is 14 days of today. I so order.

33. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 16TH DAY OF FEBRUARY 2022

R.E. ABURILI

JUDGE