State v Ng’ong’a [2022] KEHC 404 (KLR)

State v Ng’ong’a (Criminal Case E017 of 2021) [2022] KEHC 404 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEHC 404 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E017 of 2021

RE Aburili, J

May 4, 2022

Between

State

Prosecution

and

George Mukoya Ng’ong’a

Accused

Ruling

1. The accused person George Mukoya Ng’ong’a was charged with the offence of murder contrary to section 203 as read with section 204 of thePenal Code. On 20th April 2022, this court after hearing the evidence of the prosecution witnesses and the defence, delivered judgment finding the accused person guilty of the offence of murder as charged. The accused person was accordingly convicted of the offence of murder.

2. The court then heard from the Prosecution Counsel Mr. Kakoi that the DCI had no previous records on the accused person hence he could be treated as a first offender. I then reserved the matter for mitigations on request by the defence counsel. I also ordered for a pre-sentence report from the probation officer, Siaya which report was filed this morning the 4th May 2022 and signed by Mr. Milton Kasera, Probation Officer, Siaya Sub County.

3. I have considered the circumstances under which the offence herein was committed, the mitigation by the accused and his counsel and the fact that he is a first offender and is aged 46 years, married with 8 children who depend on him hence his obligations to third parties.

4. I have also heard on oath, the victim impact statements of the brother and sister to the deceased Michael Ohanya. They have stated quite emotionally that their mother is hospitalized and therefore she could not attend court, that they feel bad following the demise of their elder brother who had a wife and 4 children who depended on him. The children are said to be of school and college going age.

5. I have also considered the Presentence report filed by Mr. Milton Kasera, Probation Officer. The accused is said to be of good character save for this incident. I have also considered the Judiciary Policy Sentencing Guidelines and objects and Principles of sentencing as espoused in the Francis Muruatetu v Republic [2017] eKLR case.

6. under section 204 of the Penal Code, punishment for murder, upon conviction, is death. However, this is not mandatory sentence as was considered by the Supreme Court in the Francis Muruatetu (supra) case. However, the sentencing court can, in appropriate circumstances impose a death sentence in a deserving case.

7. The accused in this case was a village elder hence expected to assist citizens in resolving their disputes and to protect them and their property. He claims that the deceased used to abuse him and that the deceased used to have feuds with his mother and that the mother used to report the incidences to the accused who intervened and even reported them to the Assistant Chief. From the evidence adduced on record, the accused in a bid to “discipline” the deceased for allegedly abusing him earlier went overboard and unlawfully killed the deceased. There are avenues for resolving such disputes. The deceased was, according to the accused, intoxicated. He did not therefore, from the evidence on record, pose any risk or imminent danger to the accused to warrant such torture that led to his death.

8. The accused acted in irresponsibly. He has responsibilities towards his family who must nonetheless learn that crime does not pay. They must live with the consequences of the irresponsible behavior of the accused person who mercilessly assaulted the deceased who was already a disabled person as he had a fractured leg hence he could not have resisted the assault administered to him that night. Live and let live.

9. Deterrence sentence is warranted in this type of case. However, because of the remorse and mitigations by the accusedperson, I exercise discretion and sentence the accused person to serve thirty (30) years imprisonment for the murder of Michael Ohanya, which sentence shall be calculated from the date of his arrest on 12/7/2021.

10. Right of Appeal is 14 days of today to the Court of Appeal.

11. File closed. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA IN OPEN COURT, THIS 4TH DAY OF MAY 2022R.E. ABURILIJUDGE