Republic v Odhiambo & 3 others [2023] KEHC 23349 (KLR)

Republic v Odhiambo & 3 others (Criminal Case E018 of 2021) [2023] KEHC 23349 (KLR) (13 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23349 (KLR)

Republic of Kenya

In the High Court at Busia

Criminal Case E018 of 2021

WM Musyoka, J

October 13, 2023

Between

Republic

Prosecution

and

Boniface Odhiambo

1st Accused

Musa Olwete

2nd Accused

Evans Ochieng Mlefu

3rd Accused

Robert Muruai Kwesi

4th Accused

Ruling

1. The 1st accused person was convicted on July 17, 2023, of the murder of Anne Achieng Mung’ayo, on September 12, 2021. He is now a convict. I am called upon to sentence him for that offence that he was found guilty of committing. I will consider the penalties available in law for such offences, the circumstances of the commission of the offence, the feelings of the family of the victim and the antecedents of the accused person.

2. The penalty prescribed by the law for murder is mandatory death. That is what is in the Kenyan statutes. However, the Supreme Court recently ruled that mandatory sentences were unconstitutional, and directed that trial courts ought to be given room to consider the matters that I have set out in paragraph 1 above, to assess whether to award the death penalty prescribed or some other lesser sentence.

3. Murder is where death is caused intentionally. Then there is manslaughter, where death is caused unintentionally or by accident or mistake. As stated above, the penalty for murder, according to section 204 of the Penal Code, cap 63, Laws of Kenya, is death; while that for manslaughter is a maximum of life imprisonment, by virtue of section 205 of the Penal Code. The Supreme Court decision has, no doubt, thrown everything into disarray. There is no clarity at all, when it comes to assessing the appropriate sentence to impose for both manslaughter and murder. It is an open field and, in terms of sentence, it would now appear that there is no difference between murder and manslaughter. The line has been blurred.

4. I called for a pre-sentence report. The probation office has compiled the report, dated October 2, 2023, which was filed herein on even date. It is not favourable. The 1st accused is not remorseful, according to that report, he still denies his involvement in the murder. He has a criminal record. His mother mentions that he does not engage in any gainful work, but he often has lots of money, whose source is unexplained. The community does not trust him. He had once escaped from prison, and was convicted and sentenced for it. He has ties in Uganda, where his live-in partner lives, and it was in Uganda that he was arrested after the prison-break.

5. The 1st accused was convicted of murder, a pre-meditated killing. The neck of the victim was sliced open. There was a robbery, where her property was stolen. There were suggestions of a plot to kill her. This is about the killing of a human being. Human life is sacrosanct, and ought not to be terminated unlawfully, like happened in this case. Human society is very protective of its own. Senseless killing, such as in this case, should be dealt with the firmness it deserves, to send out a message about the importance to uphold sanctity of human life. A person who kills intentionally should pay back for his wrongdoing. A non-custodial sentence would not suffice, more so where the convict has a history of escaping from lawful custody, and seeking refuge in a foreign country, where his estranged live-in partner resides.

6. I have noted the circumstances of the commission of the offence, the statements made by the advocate for the convict in mitigation, and the pre-sentence report. I have also noted the antecedents of the convict, especially the fact of his previous criminal record, his flight from lawful custody, and sanctuary in a foreign country. I am also alive to the fact that the evidence against the 1st accused was circumstantial. I am also alive to the fact that the victim was killed in the safety of her own home. I have taken all these into account, balancing them against the fact that a human being lost her life.

7. In the circumstances, I shall sentence the convict to serve a custodial sentence, of 40 years’ imprisonment, effective from the date of conviction on July 28, 2023. There is a right of appeal to the Court of Appeal within 14 days. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 13THDAY OF OCTOBER 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMs. Chepkonga, instructed by the Director of Public Prosecutions, for the Republic.Mr. Were, instructed by Gabriel Fwaya, Advocate for the accused/convict.