State v Anyama & 3 others [2022] KEHC 13536 (KLR)

State v Anyama & 3 others (Criminal Case E025 of 2021) [2022] KEHC 13536 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13536 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E025 of 2021

RE Aburili, J

September 19, 2022

Between

State

Prosecution

and

Daniel Ojwang Anyama

1st Accused

Francis Otieno Otieno

2nd Accused

GOA

3rd Accused

JOO

4th Accused

Ruling

1. The four accused persons herein Daniel Ojwang Anyama, Francis Otieno Otieno, GOA and JOO were on 17/8/2022 convicted of the Murder of the deceased Clinton Otieno Omondi.

2. Their counsel mitigated on their behalf and they were also allowed to mitigate on their own upon which this court ordered for Presentence Report which have now been filed on 15/9/2022 on each of the convicts, which I have considered.

3. The 1st accused Daniel Ojwang is aged 34 years. He is married with three children all minors. He is a first offender and pleads for leniency. The local administration say that he is law abiding save for this case. He was a fisherman from which he fended for his family and the offence occurred in the course of his job as a fisherman. He is said to be a responsible husband and father.

4. From the Presentence Report, he is said to be remorseful and that he committed the offence upon finding the deceased and his crew had stolen their fishing gears i.e. lamps and that in the process, the scuffle ensured leading to the deceased losing his life. He mitigated saying they had no evil mind when they assaulted the deceased and was sorry to the family of the deceased.

5. The 2nd convict Francis Otieno Otieno too mitigated regretting the incident and that they had no bad blood with those who stole their fishing gears from their boat.

6. That he cares for his siblings and prayed for leniency. He is 27 years old according to the Presentence Report. He is married with 4 children who are all minors. He is a first offender and well behaved. He regrets the offence saying he did not know that the scuffle would lead to the death of the deceased.

7. The 3rd convict GOA is aged 18 years old, born in 2003. He dropped out of school in class seven when he joined fishing in Wichlum. He is a first offender and is said to be well behaved. His father died. He mitigated that he helps his sickly mother. He prayed for leniency.

8. The 4th convict JOO is aged 18 years. He is orphaned and lives with his grandparents who are sickly. He prays for leniency saying he never intended to kill the deceased. He dropped out of school in class seven. He comes from the same village as the 3rd convict.

9. The Prosecution submitted that there are many murder incidents at beaches and the lakeside with the fishermen taking the law into their own hands hence the court should impose deterrent sentences to send a message to the fishermen that they are subject to the law.

10. I have also considered the report on the family of the deceased COO who was survived by his mother as his father pre-deceased him 10 years ago. He has a young sister who is in class four.

11. He dropped out of school in class eight and joined fishing. He was not married but had a child. He was born in 1996.

12. Having considered all the above mitigation, Presentence reports on each convict and the situation of the deceased’s family and submissions by the Prosecution Counsel, I observe that all the 4 accused persons are young people aged between 18 years and 34 years. The offence occurred when they had a fatal confrontation with the deceased and his crew when they suspected the deceased to have stolen the fishing lamps in the lake. The accused persons however applied excessive force in trying to arrest the deceased and his crew and as a result, unlawfully killed the deceased, whose companions survived death narrowly.

13. I have considered the fact that the deceased left behind a family comprising his mother, sister and child.

14. I have also considered the circumstances under which the offence herein was committed and the ages of the convicts herein, who are all young people.

15. Punishment of Murder is death. However, this is not mandatory. The convicts are remorseful and regret the offence.

16. Taking into account the principles set out in the Francis Muruatetu Vs Republic (2017) eKLR case and the purposes and objects of sentencing as stipulated in the Judiciary Sentencing Policy Guidelines, I hereby sentence each of the accused/convicts to serve three (3) years on probation.

17. However, owing to the young ages of the 3rd and 4th accused persons being 18 years old, I hereby order that of the three years’ probation, they shall each serve one year probation at the Nairobi Probation Hostel. The 1st and 2nd accused persons shall each serve non-custodial probation sentences of 3years to be closely supervised by the Probation Officers, Siaya County/Rarieda, Bondo Sub County and in breach of the terms of probation, they shall each be arrested and brought before this court for custodial sentencing.

18. I so order.

19. File closed.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA THIS 19TH DAY OF SEPTEMBER, 2022R.E. ABURILIJUDGE