Republic v Oyollah (Criminal Case 77 of 2019) [2022] KEHC 3094 (KLR) (Crim) (5 May 2022) (Ruling) Neutral citation: [2022] KEHC 3094 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CRIMINAL CRIMINAL CASE 77 OF 2019 DO OGEMBO, J MAY 5, 2022 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND BERNARD ODIWUOR OYOLLAH .......................................................... ACCUSED RULING 1. The accused Benard Odiwuor Oyollah, was first charged with murder contrary to section 203 as read with section 204 of the Penal Code. following a plea bargain, however, the accused has pleaded guilty to the ofience of manslaughter contrary to section 202 as read with section 205 of the Penal Code. 2. The accused has filed an affidavit detailing the factors of mitigation. It is the same mitigation that counsel for the accused raised by way of oral submissions in court on March 2, 2022. The mitigation raised was that; i. That he is 31 years old, married to the deceased and with 2 children aged 11 and 7 years respectively. ii. That he is the sole bread winner of his family, being a mechanic at a construction site. iii. That he is remorseful and asks for forgiveness. iv. That he is also ailing from HIV and is on medication. v. That he has been in custody for 2 years and 3 months, and has gone through rehabilitation while in custody. vi. He pleads for a non-custodial sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3094/eng@2022-05-05 1
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3. The protection, has on the other hand, urged that the court should take into account the fact that the deceased died young at 28 years and left behind 2 young children. Counsel noted that this is a serious ofience and the sentence should give the deceased dignity. A custodial sentence was prayed for. 4. I have considered the said mitigation and the response to the same by the prosecution. I have also considered the probation officer’s pre-sentence report filed herein on March 30, 2022. In the said report, the negative attitude of the family of the deceased towards the accused is expressed. The report, while capturing a denial from the deceased’s side on any possibility of reconciliation, also alludes to the violent nature and character of the accused. 5. I have accordingly considered the above circumstances of this case. A young life of a lady (aged variously at 26 and 28) was lost. This court is convinced that the accused deserves a custodial sentence that would act as a deterrent to accused and also to others of like minds. Section 205 of the Penal code reads; “ any person who commits the felony of manslaughter is liable to imprisonment for life.” 6. Taking into account the circumstances of this case as above, I sentence the accused to serve 15 years imprisonment. This sentence shall run from 20.11.2019 when the accused was first arraigned before the court. Right of Appeal 14 days. D. O. OGEMBO JUDGE 5.2022 Court: Ruling on the sentence read out in open court in presence of the accused, Ms. Obuya for Mr. Farah for the accused and Ms. Kimani for the state. D. O. OGEMBO JUDGE 5.2022 https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3094/eng@2022-05-05 2
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