Sergeant Thomas Kipkemoi and Constables Joseph Yatich and Sebastian Komen spared death sentence after fatal bar brawl
Three police officers will each serve 20 years in jail for killing a man who knocked their table spilling drinks at a club after they refused to buy him beer.
Sergeant Thomas Kipkemoi and Constables Joseph Yatich and Sebastian Komen are lucky to have escaped death sentence following an appeal to the Appeals Court, which ordered their resentencing.
They killed Nicholas Odongo at Kwitu Classical Bar in Eastleigh Section Three, Nairobi, on March 30, 2012, and were condemned to death in July 2016.
The Appeals Court referred the case to the High Court after finding that the officers had not offered any mitigation to the trial judge because at the time of the conviction the law did not provide any alternative sentence upon conviction for murder, except the death sentence.
In their mitigation and application for resentencing, the officers told court that they had been fully rehabilitated at the prison and were remorseful, an assertion that was objected to by the Prosecution stating that the officers had never shown true remorse or approached Odongo's family for reconciliation.
'Lack humanity'
The Prosecution added that the assault was followed by the reckless behavior of neglecting to take the victim to hospital, which betrayed the officers' humanity.
Having been imprisoned in 2016, they wanted the court to find that the time spent in prison was sufficient punishment.
But Justice Kanyi Kimondo said, based on the Prosecution's evidence, the murder was premeditated adding that sentence should be commensurate to the moral blameworthiness of the offender and the nature and gravity of crime.
"The petty disagreement between the applicants and Odongo in a bar or the mere fact that he caused their beers and glasses to fall off their table did not call for the punishment he received. The applicants were police officers," said Justice Kimondo while issuing the new sentence on Friday as ordered by the Court of Appeal.
"The fact that even after Odongo fell face up, Yatich continued to step on his head while his colleagues continued with the vicious assault is a major aggravating factor. The murder was clearly pre-meditated as confirmed by both the High Court and the Court of Appeal," added the judge.
Witnesses told the trial court that before the brawl, Odongo had asked the officers to buy him beer. They responded that they did not have money and Sergeant Kipkemoi walked away.
The trial court heard that a fight ensued after Odongo accidentally hit the officers' table when he was leaving the club and their bottles of beer fell to the ground.
Immediately, the three officers attacked him and started beating him up. He fell down and while on the ground facing up, Constable Yatich stepped on his head as the other two officers continued to assault him.
They were properly identified by other revellers and the club's staff.
At the trial court, the prosecution adduced 16 witnesses including the officer in charge of Eastleigh Police Base, who testified that the police officers escorted Odongo to the Station and wanted to book him with an offence of causing disturbance.
Since they were not his officers, he questioned them and directed that they take the suspect to hospital for treatment before booking him. Odongo succumbed to the injuries at Kenyatta National Hospital while undergoing treatment.
Trial judge Stella Mutuku found them guilty, convicted and sentenced each of them to death in a judgement delivered on July 21, 2016.
Another key witness was Dr Minda Okemwa, who testified that Odongo had sustained multiple injuries and intra-abdominal bleeding with perforation of intestines and outpouring of the abdominal contents causing an infection. He also had injuries on the heart, tiny bleeds attributed to shock; and mild brain contusions.
The doctor formed the opinion that Odongo died as a result of perforated small intestines with infection due to blunt trauma.
