Republic v Jackson Ongaga Oyongo & Dominic Omundi Omboto [2016] KEHC 5823 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CRIMINAL CASE NO. 17 OF 2013

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

VERSUS

JACKSON ONGAGA OYONGO..............................1ST ACCUSED

DOMINIC OMUNDI OMBOTO.................................2ND ACCUSED

SENTENCE

1. The accused persons herein JACKSON ONGAGA OYONGO and DOMINIC OMUNDI OMBOTO were initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. By a plea bargain agreement made on 2nd March, 2016 between the state and the accused persons, the said charge was reduced to that of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

3. It is alleged that on the night of 23rd and 24th February, 2013 at Bosinange village in Gucha South District within Kisii County with others not before the court, unlawfully caused the death of OEKO OYONGO.

4. Both the accused persons pleaded guilty to the lesser charge of manslaughter and were consequently convicted on their own plea of guilty.

5. The circumstances surrounding this case, as narrated by Mr. Otieno, counsel for the state were that the deceased, who was an uncle to the 1st accused, set the house of the said 1st accused on fire on the 23rd February, 2013 while the 1st accused was attending a burial meeting. Irate members of the public that had attended the burial meeting including the 1st and 2nd accused meted out “mob justice” on the deceased thereby leaving him unconscious. The deceased’s dead body was thereafter discovered in a nearby farm the following morning.

6. In mitigation, Mr. Momanyi for the accused persons pleaded for leniency on their behalf while stating that they were both young men who were attending school at the time of the incident and as such, their education had been cut short by the instant case. Mr. Momanyi stated that the accused persons were desirous to continue with their studies.

7. The Probation Officer, in his reports filed in court on 23rd March, 2016 noted that both the accused persons were suitable for a non-custodial sentence.

8. I have taken full consideration of the circumstances that led to the assault of the deceased by members of the public that included the 1st and 2nd accused herein.  Indeed I note that this was a case of mob justice provoked purely by the actions of the deceased in setting the house of the 1st accused on fire.  I also note that the accused persons have been in custody for 2 years now while awaiting their trial.

9. I am certain that the two year period that they have been in custody will serve as adequate lesson to them to keep off violent confrontations and to desist from taking the law into their own hands.

10. Consequently, I hereby sentence the two accused persons herein JACKSON ONGAGA OYONGO and DOMINIC OMUNDI OMBOTO to 1 year probation during which period they will be supervised by the Probation Officer of their area.

Delivered, dated and signed in at Kisii on 31stday of March, 2016.

W.A. OKWANY

JUDGE

In the presence of:

Mr. Otieno for the State

Momanyi for the Accused

Omwoyo court clerk