State v Abith (alias Opudo) [2022] KEHC 13106 (KLR)

State v Abith (alias Opudo) (Criminal Case E002 of 2021) [2022] KEHC 13106 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13106 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E002 of 2021

RE Aburili, J

September 19, 2022

Between

State

Prosecution

and

Kevin Owuor Abith

Accused

alias Opudo

Ruling

1. The accused person herein is Kevin Owuor Abith alias Opudo. He is a young adult aged 22 years. He was charged with the murder of his maternal uncle Willys Owuor Owuor. The information dated January 20, 2021 is that on January 6, 2021 of Uhwaya Village, Got Agulu Sub Location in West Yimbo Location in Bondo Sub county in Siaya county, he murdered Willys Owuor Owuor.

2. The accused denied the offence. The full trial took place and on the June 29, 2022, this court delivered judgement finding the accused person guilty of the murder of his uncle.

3. The accused person mitigated through his counsel on record and in his own words.

4. The court then called for a presentence report which was filed on August 23, 2022 by Rhoda Wanyonyi, Senior Probation Officer, Bondo.

5. From the mitigation, the accused is a young adult. He was orphaned when he was very young and his maternal relatives took him in for guardianship as he was born out of wedlock. His mother died and left him at age three only and his maternal grandmother who raised him also died in 2018. He lived with his uncles until the murder incident. He is schooled up to Form Four.

6. The convict is said to be remorseful and he claims that he regrets fighting with his uncle and leaving him for dead. His uncle was disabled and on crutches.

7. The court found that being at night, the force exerted on the deceased by the convict was excessive in the circumstances to warrant a self defence.

8. The maternal uncles who are surviving are forgiving of the convict herein and say that he was well behaved hence he needs to be given a chance to live in the community as they will assist him live a meaningful life. He is a first offender. It is alleged now, not during the trial, by the deceased’s close family members that the victim was a chaotic person who liked fighting with people.

9. The offender abused alcohol and the community believes that he can be counseled and rehabilitated on the same. The Probation Officer recommends a non-custodial sentence.

10. I have considered the circumstances under which the offence was committed, the mitigation and presentence report. I have also considered the age of the convict and the fact that he is remorseful and the attitude of the family of the victim and community at large.

11. Punishment for murder is death under section 204 of the Penal Code. However, this is not mandatory sentence having regard to the principles espoused in theFrancis Muruatetu v Republic (2017) eKLR case.

12. I have also considered the objects and purposes of sentencing as contained in the Judiciary Sentencing Policy Guidelines.

13. In my view, the convict merits non-custodial sentence to be reintegrated into the community which is willing to accommodate him because of his good behavior save for the murder incident.

14. I exercise discretion and sentence the convict Kevin Owuor Abith alias Opudo to serve three (3) years probation, one of which he shall serve at Nairobi Probation Hostel, as recommended by the Probation Officer, so that he can be rehabilitated and counseled.

15. I so order.

16. File closed

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 19THDAY OF SEPTEMBER, 2022R.E. ABURILIJUDGE