Republic v Odhiambo & another [2023] KEHC 26863 (KLR)

Republic v Odhiambo & another (Criminal Case 6 of 2018) [2023] KEHC 26863 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26863 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 6 of 2018

RE Aburili, J

December 11, 2023

Between

Republic

Prosecution

and

Silas Juma Odhiambo

1st Accused

Jackton Okoth Juma

2nd Accused

Ruling

1. The two accused persons herein are Silas Juma Odhiambo and Jackton Okoth Juma. They are father and son. They were jointly charged with the offence of murder contrary to section 203 as read with section 204 of thePenal Code.

2. After full hearing of the case as they pleaded not guilty to the information, this court found them guilty of the murder of the deceased Solomon Odhiambo Muga.

3. The case was heard before F. A. Ochieng J who was elevated to the Court of Appeal before he could render the Judgment and upon request by the defence, the file was returned to this court to write the judgment which was delivered on November 21, 2023. The accused persons were released on bond pending trial.

4. They mitigated before I reserved this matter for sentencing today. I called for the Presentencing reports and the Victim Impact Reports which have been filed today by the Probation Officer. The family of the deceased was interviewed and they are present in court.

5. The accused are both first offenders. They pleaded for leniency of the court in sentencing and are remorseful. The Presentence reports show that the deceased was their relative though distant, from the same clan. That the two families have reconciled after the incident involving death of the victim.

6. The offence took place five years ago and it is possible that the deceased’s family may want closure. The accused are said to be of good character and conduct in the community which is sympathetic and pleads for leniency of the court on behalf of the two accused persons who already lost one of their family members who was a suspect in this same case. The deceased was suspected to have been the thief who stole the drum leading to the mob injustice meted out on him by the villagers among them, the three accused persons and two convicts herein.

7. On other suspect who was also the 1st accused’s son and brother to the 3rd accused, died in the course of these proceedings.

8. No person has any licence to unlawfully kill another in the name of killing a thief who was not even armed. People should not be encouraged to mete out injustice to suspected offenders as there are lawful means for dealing with suspected offenders.

9. The accused persons denied committing the offence but the evidence is clear as to their involvement. They are nonetheless remorseful and have made peace with the deceased’s family.

10. I have interviewed the Victim’s family members, the uncle and son who state that they will accept the verdict of the court as they have reconciled with the accused persons and their families.

11. Sentencing is in the discretion of the trial court. I have considered the circumstances under which the offence was committed, the mitigations. The 2 accused persons are father and son. They lost one of their own during the pendence of this case. The 1st accuse is a 50 year old man with children including the 3rd accused and the deceased 2nd accused.

12. The 3rd accused is 25 year old and is said to be newly married. They have remained the only men of the home. They pray for non-custodial sentences. The 1st accused stated that he also takes care of his deceased son’s children.

13. The Probation report is in favour of non-custodial sentences. Offcourse that is the most lenient sentence that this court can impose on the persons who have shown remorse but in the event of breach of the conditions, the court has the power to recall the sentence and impose custodial sentence.

14. The penalty for murder upon conviction is death as stipulated in section 204 of thePenal Code. However, this is not mandatory as was clearly stated by the Supreme Court in the Francis Karioko Muruatetu & another v Republic [2017] eKLR case.

15. Having considered all the above and the fact that it is not just custodial sentence that serves the interest of justice, and taking into account the principles espouse din the Francis Karioko Muruatetu & another v Republic [2017] eKLR that sentencing is in the discretion of the trial court having regard to the circumstances of each case and the mitigations, I hereby sentence each of the two accused persons Silas Juma Odhiambo and Jackton Okoth Juma to serve Probation for three (3) years and not to breach any of the probationary terms.

16. The sureties are discharged and the security if any, deposited in court is to be released to the sureties forthwith.

17. This file is now closed.

18. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF DECEMBER, 2023R. E. ABURILIJUDGE