Republic v Andrew Otieno Oino [2015] KEHC 1853 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 29 OF 2015

REPUBLIC ……………………………………PROSECUTOR

VERSUS

ANDREW OTIENO OINO….…………….......….…ACCUSED

SENTENCE

The accused person herein ANDREW OTIENO OINO, was initially charged with the offence of Murder contrary to Section 203as read withSection 204 of the Penal Code.

By a plea bargain agreement entered into on the 17th July 2015 between the accused person and the state, the said charge was reduced to Manslaughter contrary to Section 202as read withSection 205 of the Penal Code.

The particulars of the charge were that on 19th March 2013 at Bogitengo Sublocation in Gucha District within Kisii County in the Republic of Kenya, unlawfully caused the death of WILSON OINO RAMBEKA.

The accused person pleaded guilty to the said charge and was consequently convicted on his own plea of guilty.

The facts leading to the commission of the offence were that on 19th March 2013 at about 6. 00 p.m., the accused herein was tilling his shamba when his father, WILSON OINO RAMBEKA, accosted him and started hauling stones at him while accusing him of being a bother to him. A physical confrontation thereafter ensued in which the accused wrestled the deceased to the ground and the deceased never got up as he died on the spot.

A post mortem report produced in court as exhibit 1 established the cause of death as cardio-respiratory arrest though the immediate cause of death was uncertain.

In mitigation, Mr. Ondari, counsel for the accused submitted that the accused was a first time offender who was provoked by the father as the accused had no intention of killing him. He stated that the accused acted in self defence. Mr. Ondari added that the accused was a family man with 3 school going children who were suffering in his absence. He pleaded for leniency in view of the fact that the family had reconciled and the accused had been in custody for more than 2 years.

The pre-sentence and victim impact report filed in court on the 14th August 2015 recommended that the accused be given a non-custodial sentence in view of the fact that he had shown deep remorse, was a first offender and was provoked by the deceased who was himself an ex-convict.

I have taken into account the circumstances under which the deceased died, and more specifically the fact that it was the deceased who first attacked the accused while he (the accused) was busy working in his shamba. I have also taken into consideration the fact that the accused is a fairly young man with a young family who require his care and protection. I note that the accused has been in custody for over two years which period is adequate lesson to him to tame his anger and keep away from crime.

Accordingly I sentence the accused person herein ANDREW OTIENO OINO to one (1) year non-custodial sentence during which he will be supervised by the probation officer of his area.

It is so ordered.

Signed, Datedand Delivered in open court this 28th day of October, 2015.

HON. W. A. OKWANY

JUDGE

In the Presence of:

Mr. Boiyon for the State

Mr. Kaburi for Ondari for the Accused

Omuga: Court clerk