Republic v Oyosa & another [2023] KEHC 23407 (KLR)

Republic v Oyosa & another (Criminal Case E002 of 2022) [2023] KEHC 23407 (KLR) (13 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23407 (KLR)

Republic of Kenya

In the High Court at Busia

Criminal Case E002 of 2022

WM Musyoka, J

October 13, 2023

Between

Republic

Prosecution

and

Sabina Odhiambo Oyosa

1st Accused

Geoffrey Ouma

2nd Accused

Ruling

1. The accused persons herein were convicted on July 28, 2023, of the murder of their blood brother, Collins Owino Oyosa, on January 13, 2022. They are now convicts. I am called upon to sentence them for that offence that they were 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 persons.

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 a spin. 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 pre-sentence reports. The probation office has compiled the reports, one is dated September 15, 2023 and the other October 3, 2023, both were filed herein on 3rd October 2023. They are generally favourable. The 1st convict is not remorseful, according to that report, for she still denies her complicity. The position of the 2nd convict is unclear. The mother of the convicts and the deceased prays for leniency, saying that the murder robbed her of a son, and custodial sentences would take away her other 2 children. The probation office recommends non-custodial sentences. The deceased is depicted, by the community, in both reports, as having been an undesirable character.

5. The convicts were convicted of murder, a pre-meditated killing. The evidence that was placed before the court was that of individuals who set out in search of the deceased, having suspected him of committing theft of a bicycle. They went to his home, flushed him out, and set upon him with weapons. This is about the killing of a human being. Human life is sacred and ought not to be terminated unlawfully like happened in this case, even where the victim is considered undesirable in society. 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.

6. If the deceased had committed a crime or had offended, as claimed by the convicts, the proper thing should have been to report the matter to the police, and to leave it to them to investigate, gather evidence and prosecute him. The convicts took the law into their own hands, with tragic consequences.

7. I have noted the circumstances of the commission of the offence, the statements made by the Advocate for the convicts in mitigation, and the 2 pre-sentence reports. I have also noted the antecedents of both convicts, especially the fact that the 1st convict has young children. I have taken all these into account, balancing them against the fact that a human being lost his life. I am also alive to the fact that it was the convicts who went out looking for the deceased, and attacked him.

8. In the circumstances, I shall sentence the convicts to serve a custodial sentence, of 25 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 13TH DAY OF OCTOBER 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMs. Chepkonga, instructed by the Director of Public Prosecutions, for the Republic.Mr. Ouma, Advocate for the accused/convicts.