Republic v Jovensia Gechemba Ratemo,Joel Maeba Onsati, George Nyakundi Alias Guto & Charles Makori Ontonyi [2016] KEHC 1328 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 29  OF 2014.

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

VERSUS

JOVENSIA GECHEMBA RATEMO .........................................1ST ACCUSED

JOEL MAEBA ONSATI............................................................2ND ACCUSED

GEORGE NYAKUNDI alias GUTO...........................................3RD ACCUSED

CHARLES MAKORI ONTONYI................................................4TH ACCUSED

SENTENCE

1. JOEL MAEBA ONSATI and CHARLES MAKORI ONTONYIwere  charged with the offence of murder which was, by a plea bargain agreement executed on 7th November 2016, between the state and the accused reduced to a lesser charge of  manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The particulars of the offence were that on the night of 17th and 18th February 2014, at unknown time at Bonyangatanyi sub-location in Kisii Central District within Kisii County, jointly with others not before the court caused the death of WIDEN MAEBA NYAATA.

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

3. The circumstances surrounding the case were that the accused persons and the deceased went on a drinking spree on the material night only for the body of the deceased to be found lying dead on the wayside and at the same spot, the 2nd  accused herein Joel Maeba was deep asleep next to the body of the deceased.

4. A post mortem examination on the body of the deceased revealed that the cause of death was cardio-respiratory arrest secondary to asphyxia due to strangulation.

5. In mitigation, Mr. Sagwe advocate for the accused submitted that the offence occurred when the accused persons were in a drunken stupor and that while the 2nd accused was an elderly man aged 64 years, the 4th accused was a very young man aged 24 years. Mr. Sagwe pleaded for leniency on behalf of the accused persons.

6. The court called for the probation officer’s report before judgment which was however not filed as at the time of delivering this sentence.

7. I have considered the circumstances surrounding this case and the mitigation tendered by the accuseds’ advocate. It is very clear to me that the deceased and accused persons were totally drunk on the night of the offence to the extent that the 2nd accused was found fast asleep next to the deceased’s body. To my mind, the offence can be attributed to drunkenness and this case is a classic demonstration of the harmful and devastating effects of alcoholism in the society.

8. I note that the accused persons have been in custody since 201 and I am satisfied that they have sobered up  during their long stay in remand custody and learnt a lesson on how to be law-abiding citizens. I am satisfied that a non-custodial sentence will be appropriate punishment for the accused persons.

9. Consequently, I sentence both  accused  JOEL MAEBA ONSATI and CHARLES MAKORI ONTONYI two years probation during  which period they will be supervised by the probation officer of their area.

Delivered, dated and signed in at Kisii on 28th of November, 2016.

W.A. OKWANY

JUDGE

In the presence of:

Mr. Otieno for the State

Mr.  Kaburi for Sagwe for the Accused

Omwoyo court clerk