Republic v Erick Okong’o Bichanga [2017] KEHC 2118 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 1 OF 2017

REPUBLIC..................................................... PROSECUTOR

VERSUS

ERICK OKONG’O BICHANGA..................... ACCUSED

SENTENCE

1. The accused person herein,ERICK OKON’GO BICHANGA, was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code but by a plea bargain agreement made between the accused and the state on 18th September 2017, the said charge was reduced to a lesser charge of manslaughter to which the accused pleaded guilty and was consequently convicted on his own guilty plea.

2. The particulars of the offence were that on 3rd January 2017 at Riteka village, Muma sub-location, Getenga location, Gucha South sub-County within Kisii County in the Republic of Kenya unlawfully caused the death of EVANS OBARA OKETCHI.

3. The facts of the case, as narrated by Miss Mbelete counsel for the state, were that on the material day, the deceased hired the accused, who was a boda boda rider, to ferry him from Nyamai market to Ikona Market, but that along the way, the accused kept on picking other passengers which action did not go down well with the deceased. After 2 passengers alighted along the way, the deceased protested and differed with the accused who abandoned the journey midstream. A physical confrontation then ensued in which the accused, who was then armed with a pen knife, stabbed the deceased on the left side of his head before escaping from the scene before eventually surrendering himself to the police. The deceased was rushed to hospital where succumbed to the injuries inflicted by the accused.

4. In mitigation, Mr. Sagwe for the accused submitted that the accused was a young man aged only 21 years and was married with one wife and a child to whom he was the sole breadwinner. He stated that the accused deeply regretted his actions and pleaded or a lenient sentence.

5. The probation officer’s report filed in court on 6th November 2017 revealed that the accused was a first offender who could benefit from a non-custodial sentence.

6. I have carefully considered the circumstances surrounding this case, the mitigation tendered by the accused’s advocate and the probation officer’s report. I note that he accused herein invited the anger and displeasure of the deceased by ferrying other passengers on the same motorcycle and at the same time with the deceased despite the fact that the deceased had hired him specifically to ferry him (deceased) to Ikona Market. To make matters worse, the accused abandoned the deceased on the road before getting him to his destination thereby precipitating a disagreement that led to the accused stabbing the deceased to death.

7. From the above circumstances, it is quite clear to me that even though the accused was a boda boda rider, he had no idea what proper customer care and courtesy to his clients entailed going by the discourteous and violent manner in which he treated the deceased before stabbing him to death. This court is at a loss as to the reason why the accused deemed it necessary to carry along a lethal weapon such as a pen-knife when clearly, his day to day activities did not require him to possess such a weapon in the first place. This court can only conclude that the accused had an ill motive in arming himself with a pen knife which motive was manifested when he used the said weapon to fatally wound the deceased.

8. I find that the recommendations of the probation officer notwithstanding, the circumstances of this case call for a custodial sentence going by the aggravated nature of the accused’s actions. The accused had no qualms about stabbing the deceased whose only ‘mistake’ was to demand for his rights and for better treatment as the accused’s customer.

9. I further find that the accused’s age notwithstanding, his irrational actions led to the untimely death of an innocent man. Manslaughter is a serious crime which attracts a maximum of life sentence upon conviction, but in the instant case, I find that a sentence of 5 years imprisonment will appropriate punishment taking into account the fact that the accused has been in custody for almost one year while awaiting his trial.

10. Consequently I hereby sentence the accused herein to 5 years imprisonment.

11. It is so ordered.

Delivered, dated and signed in at Kisii on 9thof November, 2017.

W.A. OKWANY

JUDGE

In the presence of:

- Mr. Otieno for the State

- Omwoyo court clerk