[2021] KEHC 3017 (KLR)
The court found that the circumstances of the offence, including the planning and brutality involved, outweighed the mitigating factors presented by the accused. The presentence reports did not recommend non-custodial sentences, and the accused were found to be a continuing threat to the victim and society. The...
Source-derived case information.
- Citation
- [2021] KEHC 3017 (KLR)
- Parties
- Applicant: Republic of Kenya; Defendant: Kelvin Otieno Ogejo; Defendant: Kelvin Otieno Onjiko
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7, 8 & 11 of 2020
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- Both accused persons sentenced to life imprisonment.
- Judges
- RE Aburili
- Legal Topics
- Murder, Sentencing Guidelines, Mitigation, Life Imprisonment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
Kelvin Otieno Ogejo
Defendant
Kelvin Otieno Onjiko
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused persons should be sentenced to life imprisonment for the offence of murder.
- 2 Whether mitigating factors and presentence reports warrant a non-custodial or lenient sentence.
Ratio Decidendi
The court found that the circumstances of the offence, including the planning and brutality involved, outweighed the mitigating factors presented by the accused. The presentence reports did not recommend non-custodial sentences, and the accused were found to be a continuing threat to the victim and society. The court held that the seriousness of the offence and the lack of remorse or suitability for non-custodial sentences justified a sentence of life imprisonment for both accused persons. The court emphasized the sanctity of life and the need to protect society from individuals who do not value life, concluding that mercy was not warranted in this case.
Court Disposition
Both accused persons sentenced to life imprisonment.
Orders
- Kelvin Otieno Ogejo is sentenced to life imprisonment.
- Kelvin Otieno Onjiko is sentenced to life imprisonment.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL CASE NO. 7, 8 AND 11 OF 2020
CORAM: HON. R.E. ABURILI, J
STATE.................................................................................................PROSECUTION
VERSUS
MICHAEL WAHANDA ABIDHA......................................................1ST ACCUSED
BONIFACE OTIENO.........................................................................2ND ACCUSED
NICHOLAS OWAGA WAHANDA...................................................3RD ACCUSED
KELVIN OTIENO OGEJO...............................................................4TH ACCUSED
KELVIN OTIENO ONJIKO.............................................................5TH ACCUSED
RULING ON SENTENCE
1. On 16/9/2021, this court delivered judgment in this case finding the 2 accused persons herein Kelvin Otieno Ogejo and Kelvin Otieno Onjiko guilty of the information of Murder contrary to Section 203 of the Penal Code.
2. The two accused persons who are represented by Mr. Odongo advocate and Mr. Okello Advocate respectively, mitigated saying that they are first offenders and remorseful. The 4th accused stated that he has a young family and long sentence will render his family to hardship. That he was ready to change given lenient sentence. He also thanked the court for expediency and impartiality in this case. He stated that he has a wife and 2 children. The fifth accused person added in mitigation that he is a family man and sole breadwinner for his family of a wife and 2 children. He stated that he did not expect to be convicted of the offence. He prayed for a non-custodial sentence.
3. This court then ordered for Presentence reports which have been filed by Euphemia Kidwoli, Probation Officer on 12/10/2021.
4. In the said reports, the 5th accused person is said to be living a mysterious life in that he gave false particulars of his abode which could not be traced. In addition, the places he gave, the local administration know him not. A non-custodial sentence is not recommended.
5. As against the 4th accused person, the report states that he is also not suitable for non-custodial sentence.
6. I have considered the mitigation, the Presentence reports and the Judiciary Sentencing Guidelines. I have also considered the circumstances under which the offence of Murder was committed by the 2 accused persons and their accomplices. The offence of Murder, upon conviction, carries death sentence as stipulated in Section 204 of the Penal Code.
7. The accused persons had no reason to unlawfully kill the deceased and having planned to kill, they do not deserve the mercy of this court. They are dangerous human beings who should not be allowed to live in the society with others because they do not value life. Life is sacrosanct and no person has any right to take away the life of another, except by law provided and or under the Constitution.
8. Considering the circumstances under which the deceased was brutally murdered, I find that the appropriate sentence is to place the two (2) accused persons behind bars for life, noting that the person they intended to murder is still alive and that the accused are a serious threat to him and his family.
9. Accordingly, the two (2) accused persons herein Kelvin Otieno Ogejo and Kevin Otieno Onjiko are hereby sentenced to serve life imprisonment.
10. Right of Appeal 14 days.
11. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 13TH DAY OF OCTOBER, 2021
R.E. ABURILI
JUDGE
In the Presence of:
Accused persons: Kelvin Otieno Ogejo and Kelvin Otieno Onjiko
Ms. Otieno Advocate h/b for Mr. Odongo for 4th Accused person
Mr. Okello Advocate for 5th Accused person
Ms. Owenga Advocate for Victim’s family
Mr. Kakoi, Principal Prosecution Counsel for State
Court Assistants: Modestar and Mr. Mboya