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Appeal Court frees grave digger who killed colleague at graveside

A grave-digger who killed his colleague during a night fight beside a grave they were digging in Ungunja, Siaya County, has been set free by the Court of Appeal following a successful appeal.

Caroly Owino Oluoch was set free after convincing the appellate judges that a high judge who handed him a 10-year jail term for manslaughter erred in law.

Oluoch had argued that Justice James Makau failed to put into consideration various mitigating factors thus meting out an excessive sentence.

The convict also accused the judge of failing to address his mind to emerging jurisprudence on sentencing for the offence of manslaughter exercising his discretion wrongly for an excessive sentence in the circumstances of the case.

The appellate judges even pointed out that the High court colleague failed to put into consideration the probation report and Oluoch’s mitigation and set Oluoch free unconditionally.

Oluoch had submitted that Makau ignored various mitigating factors which would have led him to give him a lesser sentence.

These included the fact that the act happened amidst a lot of drinking meaning there was no mens rea; (intention or knowledge) and the deceased was the aggressor.

Oluoch also, through his advocate argued that Makau failed to consider that he was a first offender; and his family subsequently undertook to cater for the deceased’s family.

He convinced the appellate judges Patrick Kiange, Fatuma Sichale, and Sankale Ole Kantai to find that the learned Judge misdirected himself in respect of the mitigating factors and arrived at a manifestly excessive sentence.

“Ultimately and inevitably, we find that this appeal has merit. We set aside the 10-year sentence, reducing it to time already served. We order that he be set at liberty forthwith unless he is otherwise lawfully held,” they unanimously ruled.

The three said from the record, “it is disturbingly clear that the learned Judge failed to take into account and give due credit to the mitigation by the appellant’s counsel and the probation report from the Probation Services”.

The judges said the facts of the case show that both parties were drunk and that the deceased was the aggressor, the same is corroborated by the probation report which gave a detailed account of the events which led to the unfortunate attack.

The report described the appellant as a hardworking and honest individual who was considered to be the best mason in the community.

But the predicament of Oluoch who has been incarcerated since April 2015 and the deceased Charles Okumu Odero is an unfortunate tale of two young men who fought under influence of alcohol leading to the death of one and the incarceration of the other.

The two were among young men hired to dig a grave on April 26, 2015, which happens at night in their place and done while the diggers take alcohol, as a custom.

The deceased had accused Oluoch of making noise while drinking alcohol and a fight ensued between them before Oluoch, amazon, took a spade and hit him twice.

He was taken to a hospital before transfer to the Jaramongi Onginga Odinga Referral Hospital where he died on May 6, nine days after the assault. Oluoch turned himself in at Ungunja police station where he was arrested and charged with murder on June 3, 2015 which he denied.

The prosecution reduced the same to manslaughter on July 25 of the same year to which he pleaded guilty.

Oluoch was sentenced to serve 10 years in jail on October 6, 2016.

But he filed an appeal despite a probation report in which his village-mates described him as a self-dependent, hardworking man who was the best mason in the area and was not a threat to anyone because he had no previous criminal records.

The judges said the trial process does not stop at convicting the accused.

“There is no doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing that the court hears submissions that impact on sentencing. This necessarily means that the principle of fair trial must be accorded to the sentencing stage too.

“From the foregoing, coupled with the fact that the appellant was a first offender, swiftly and voluntarily surrendered himself to the police and pleaded guilty to the offence, we find that the 10-year sentence was excessive and highly disproportionate to his crime and the circumstances of the case,” they stated.