Republic v Enock Nyabuto, John Ochwari Obae, Richard Ombiro Resi & Alloys Ogeo [2016] KEHC 4916 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 23 OF 2014

REPUBLIC………………………..……………………………..PROSECUTOR

VERSUS

ENOCK NYABUTO………………….…………..……..……….1ST ACCUSED

JOHN OCHWARI OBAE…………………..………...………….2ND ACCUSED

RICHARD OMBIRO RESI…………………………...….………3RD ACCUSED

ALLOYS OGEO…………………………………………..…….4TH ACCUSED

SENTENCE (In respect to the 1st accused)

1. The accused persons herein, ENOCK NYABUTO, JOHN ONCHWARI OBAE, RICHARD OMBIRO RESI and ALLOYS OGEO, were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the charge were that on diverse dates between 18th and 19th January, 2014, at Gesabakwa village, Onywere sub-location in Marani District within Kisii County, jointly murdered OSUMA MENGE.

3. By a plea bargain agreement entered into between the 1st accused herein ENOCK NYABUTO, and the state on 23rd July, 2015, the charge against the 1st accused was reduced to that of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.  The 1st accused then pleaded guilty to the lesser charge of manslaughter and was consequently convicted on his own plea of guilty.

4. The Circumstances of this case are that the 1st accused was in the company of other robbers when they attacked the deceased, a 95 year old man in his house with the intention of robbing whereupon the 1st accused hit the deceased with a rungu thereby injuring him fatally.  They then robbed the deceased of Kshs. 15,000/= which they shared among themselves before leaving the deceased’s house.

5. In mitigation, Mr. Sagwe for the 1st accused submitted that the accused was a young man aged 20 years old and that he was remorseful for the crime that he had committed.

6. Even though the Probation Officer had not filed a pre-sentencing report in respect to the 1st accused as at the time that I was preparing this ruling, I have had a chance, to peruse the Probation Officers pre-bail report about the 1st accused dated 26th January, 2015.  The said report paints a very grim picture on the criminal record of the 1st accused who is reported to be a repeat offender having been convicted of being in possession of alcohol in criminal case no. 521 of 2012 for which he was placed on probation.  The report also showed that the members of the public were hostile to him and threatened to lynch him if he was released on bond.

7. Even though this ruling is not about an application for bond, I am confident that the Probation Officers Report is relevant to the sentence in so far as it gives an insight on the criminal record of the 1st accused and the feelings of the members of his community on his being released on bond/probation.

8. I have considered the circumstances leading to the death of the deceased in this case.  The 1st accused in the company of other people brutally attacked a helpless old a man in his own house at night and robbed him of cash.  The 1st accused and his gang members planned their evil acts and executed it with deadly force. The actions of the 1st accused together with his group led to the death of an innocent old man who was sleeping in his own house.

9. I find the actions of the 1st accused totally inexcusable and despicable to say the least. The members of the accused’s community are unwilling to receive him back in their midst.

10. Accordingly, I sentence the 1st accused herein, ENOCK NYABUTO ONGEOto 7 years imprisonment, the sentence shall run with effect from the date of 1st appearance in court being 10/2/2014.

11. It is so ordered.

Delivered, dated and signed in at Kisii on 9th day of May, 2016

W.A. OKWANY

JUDGE

In the presence of:

Otieno for the State

Mr. Magara for Sagwe for the Accused

Omwoyo court clerk