[2022] KEHC 10824 (KLR)

State v Odato & another (Criminal Case E003 of 2020) [2022] KEHC 10824 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10824 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E003 of 2020

RE Aburili, J

June 13, 2022

Between

State

Prosecution

and

Tom Opiyo Odato

1st Accused

Agneta Akoth Atira

2nd Accused

Ruling

1. On 18/5/2022, the accused persons herein Tom Opiyo Odato and Agneta Akoth Atira were found guilty of the charge of Murder contrary to Section 204 as read with section 205 of the Penal code. They were accordingly convicted.

2. The accused persons then mitigated on their own behalf and their counsel Mr. Were mitigated for them. The court also ordered for a Presentence report.

3. The accused/convicts herein are first offenders as there is no record of previous criminal record on them.

4. The 1st accused person is said to be single and that he is aged 39 years old. He assists the 2nd accused in caring for children who are school going. He is remorseful. He seeks forgiveness from the deceased’s family and leniency of the court. He prays for a reduced sentence.

5. The 2nd accused is a middle aged lady. She is a single mother who solely relies on farming as her source of livelihood and seeks forgiveness from the victim’s family. She prays for a lenient and reduced sentence.

6. In his own words, Tom Opiyo Odato mitigated saying he did not intend to kill the deceased. That the 2nd accused had raised him up after he was orphaned at a young age. He relies on farming to educate the children of the 2nd accused. He prayed for leniency as he has never had issues from the community in Nyasanga where they bought land as immigrants.

7. The 2nd accused Agneta Akoth mitigated saying that she was the mother and father to her children, three of whom are in secondary school. That she has lived in Alego for 20 years and that she never intended to commit the offence.

8. That she takes care of the orphans and that there is nobody to take care of her needy family. She prayed for leniency of the court.

9. In the Presentence Reports filed on 30/8/2022 by Mr. Milton Kasera, Probation Officer Siaya, the 1st accused is said to be cohabiting with the 2nd accused. They rely on farming and growing vegetables to care for the children of the 2nd accused. He is remorseful. He is said to be hardworking and polite. He is 40 years old.

10. The 1st accused is said to be aged 54 years and a single mother of 5 children as her other children died. Her last born child is a Form Three student at [particulars withheld] Girls in Siaya. The accused is reported to be a well behaved person in the community.

11. The deceased is said to have been unmarried as at the time of his demise due to domestic violence meted on the women that he cohabited with. He was reportedly a drunkard and deviant in character involving thefts. He was not survived by any child.

12. I have considered all the above. The deceased died in the hands of the 2 accused persons. If he had gone to their home with an ulterior motive, the 2 accused persons in the company of their other family members had every opportunity and capacity to disable or disarm him, arrest him and take him to the local administration for necessary action.

13. For that reason, the accused persons did not have to cut the deceased into pieces the way they did and fatally injuring him. The accused persons jointly took the law into their own hands and unlawfully killed the deceased. There was no proof that he attempted to set their house ablaze and that they acted in self defence or that the deceased was killed by a mob.

14. The accused person had no regard for the life of the deceased who, though a drunkard and of deviant or violent character, there were lawful means of dealing with the deceased and not to hack him to death, the way the 2 accused persons did.

15. Life is sacrosanct. Live and let live.

16. Taking into account all the above, and the sentencing Policy Guidelines and the Principles espoused in the Francis Muruatetu & Another v Republic [2017] eKLR, albeit the punishment for murder is death, this court has discretion in sentencing having regard to the circumstances of each case and mitigations by the accused persons.

17. The accused persons are said to have good character in the community save for this case. They have no previous criminal records. They are remorseful and pleaded for leniency of this court in sentencing. They are aged 40 years and 54 years respectively. They of course lied to this court when they 1st accused claimed that the 2nd accused is his foster mother because the social inquiry reveals that the two are cohabiting as husband and wife. Their witnesses too bought and sold that lie to this court. The accused are the sole breadwinners of the children of the 2nd accused one of whom is still of school going and was a witness in this case. I am therefore aware that the accused have responsibilities and obligations of supporting third parties.

18. Having considered all the above, I find that a custodial sentence is appropriate. I sentence each of the two accused persons herein Tom Opiyo Odato and Agneta Akoth Atira to each serve a prison term of ten (10) years imprisonment taking into account any period spent in prison custody during their trial. Right of Appeal is 14 days to the Court of Appeal from today.

19. File closed.

20. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 13TH DAY OF JUNE, 2022R.E. ABURILIJUDGE