Republic v Oriero [2022] KEHC 3399 (KLR)

Republic v Oriero (Criminal Case 11 of 2019) [2022] KEHC 3399 (KLR) (Crim) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3399 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 11 of 2019

DO Ogembo, J

May 5, 2022

Between

Republic

Prosecution

and

Emmanuel Owour Oriero

Accused

Ruling

1. The accused Emmanuel Owour Oriero, was originally charged with the offence of murder contrary with the offence of murder contrary to section 203 as read with section 204 of the PenalCode. He has however plea bargained and pleaded guilty to the offence of manslaughter contrary to section 202 as read with section 205 of the PenalCode. This was on November 18, 2021.

2. Upon his being convicted on the charge of manslaughter, the accused, through his advocate raised the following mitigating factors:-i.That he is extremely remorsefulii.That in sentencing him this court balances the circumstances of the victims, the accused and those of the children.iii.That he be considered for a non-custodial sentence so that he may take care of the childreniv.That he is a first offender.v.That time spent in custody be taken into account.

3. The prosecution, on the other hand, has pleaded that even though the accused has entered a plea bargain, the sentence should reflect the seriousness of the offence and honour to the deceased.

4. The court has taken into account the mitigation of the accused and also the response to the same by the Respondent.

5. It is also noted that upon a request by the prosecution side, the court ordered for a probation officer’s pre-sentence report. The said report, dated March 24, 2022 was duly filed herein on March 30, 2022.

6. This court has duly considered the same. The salient observations in this report are as follows:-a)That the accused and the deceased generally had an acrimonious marriage and several attempts at reconciliation failed.b)That the accused is generally a violent man.c)That the children of the couple live with their grandmother, and the accused had neglected the children even preceding the offence.d)The very negative attitude of the family of the deceased towards the accused.e)The very negative views of the local community and administration against the accused.f)The negative attitude of the accused’s own family members against him.

7. The probation officer’s report sums up that the accused does not enjoy positive social support from the community, which makes it untenable for community supervision and rehabilitation. And that he is of high risk for re-offending and a threat to the security in the community.

8. I have considered all the above and the circumstances of this case and I am convinced that the accused is not suitable or deserving of a non-custodial sentence. This court is convinced that the accused deserves a custodial sentence which would act as a deterrence to him and those of like minded. While appreciating that the accused has by entering a plea bargaining, he has saved the court’s time, it is the opinion of the court that he deserves a sentence commensurate with the serious nature of the offence charged.Section 205 of the Penal Code states:“any person who commits the felony of manslaughter is liable to imprisonment for life.”

9. In view of he above observations, I sentence the accused to serve 30 years imprisonment. The sentence shall run from February 21, 2019, the date he was first arraigned before court. Right of Appeal 14 days.

D. O. OGEMBOJUDGEMay 5, 2022Court:Ruling read out in open court in presence of the accused, Mr. Ratemo Oira for the accused and Ms. Kimani for the state.D. O. OGEMBOJUDGEMay 5, 2022Mr. Ratemo:We pray for copies of the proceedings leading to the sentence.Court:Certified copies of the proceedings upto sentence to be prepared and supplied as urged.