[2015] KEHC 4195 (KLR)
The court found that the accused did not have the intention to cause death, as the fatal incident occurred during the commission of a felony (theft of an electricity pole) and resulted from an accident when the pole was dropped. The accused's lack of prior convictions, his remorse, his surrender to authorities, and...
Source-derived case information.
- Citation
- [2015] KEHC 4195 (KLR)
- Parties
- Respondent: State; Defendant: Isaiah Ogoti Kimari
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 125 of 2012
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted of manslaughter and sentenced to one year non-custodial sentence under probation supervision
- Legal Topics
- Manslaughter, Plea Bargaining, Sentencing, First Offender, Mitigation, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
State
Respondent
Isaiah Ogoti Kimari
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused had the requisite mens rea for murder or was guilty of manslaughter only.
- 2 Whether the circumstances justified a non-custodial sentence for the accused.
- 3 Whether the period spent in custody and the accused's personal circumstances warranted leniency.
Ratio Decidendi
The court found that the accused did not have the intention to cause death, as the fatal incident occurred during the commission of a felony (theft of an electricity pole) and resulted from an accident when the pole was dropped. The accused's lack of prior convictions, his remorse, his surrender to authorities, and the positive probation report indicating family and community support justified a non-custodial sentence. The court also considered the three years already spent in custody and the accused's personal circumstances, including his age and family responsibilities. Consequently, the court exercised its discretion to impose a one-year non-custodial sentence under probation...
Court Disposition
convicted of manslaughter and sentenced to one year non-custodial sentence under probation supervision
Orders
- The convict is sentenced to one year non-custodial sentence at his home under the supervision of probation officers.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 125 OF 2012
STATE…………………………PROSECUTOR
VERSUS
ISAIAH OGOTI KIMARI…......……ACCUSED
SENTENCING
This is a case of manslaughter- through the plea bargaining agreement under S.137A of the Criminal Procedure Code entered into on 5th February, 2015. The facts briefly are that on 30th September, 2012 at around 10. 30p.m. at Amabuko village in Kisii Masaba North District within Nyamira County, jointly with others not before court murdered John Mogere Orangi.The accused, Isaiah Ogoti Kimari together with the deceased, John Mogere and another had a common intention of committing a felony, i.e. the theft of an electricity pole belonging to Kenya Power & Lighting Company.
They were carrying the electricity pole from Amabuko primary school and heading towards the accused’s homestead. As they were walking, carrying the pole, Julius Orangi who was in front from where he was holding the pole, shouted that the pole was too heavy and requested that it be put down.The other two persons threw down the pole as a result, it hit the deceased on the head. He fell down and the pole rolled towards him. He succumbed to his injuries.
According to the prosecutor, the accused has no previous convictions. He is therefore, treated as a first offender.
In mitigation, his counsel, Anyona, says the accused is remorseful over the incident which led to the loss of life.
The facts read to the court indicate, the accused and others, not before the court, had no common intention of killing the accused. Upon the occurrence of this incident, the accused did not run away, he surrendered himself to the authority and subsequently charged with murder.
Considering the circumstances of this case, the accused had no intention of causing death. He was charged in 2012 been in custody for about three years. He urged the court to consider a lenient sentence.
The probation officer’s report.
The accused is 51 years old. He is married and has seven (7) children. The younger children are still toddlers. The offender is said to be a responsible and hardworking man who had not exhibited criminal traits before. But he habitually drinks.
His family expressed their willingness to receive the accused and assist in his rehabilitation plan. In the other words his family are receptive of him. The community at large have no objection if the offender is given non-custodial sentence. The area chief Kennedy Ngege is also receptive and welcomes the accused person to be given non-custodial sentence.
Accordingly, the convict is hereby sentenced to one year non-custodial sentence at his home under the supervision of the probation officers.
It is so ordered.
Dated and delivered at Kisii this 20th day of March, 2015
C.B. NAGILLAH,
JUDGE.
In the presence of:-
Otieno for the state
Kaburi holding brief for Anyona for the accused
Edwin Mongare Court Clerk.