A convict who killed a fellow prisoner for attempting to sodomise him will serve two years probation.
In May 23 this year, John Muhere, who was convicted after being found in possession of game meat, attempted to sodomise Luka Ondiami, who was jailed for a minor offence.
Mr Ondiami told High Court judge Wilfrida Okwany that he was just defending himself
"It is apparent to me that (Ondiami) acted with excessive force to repulse (Muhere) who had attempted to have unnatural sex with him. This court takes note of the fact that a victim of sexual assault can, in the heat of the moment, react violently to ward off an assailant but this is not to say that the actions of the accused were justified or lawful," Justice Okwany said.
"It is my finding that the accused used excessive force in the circumstance, but considering the compelling mitigation tendered by his counsel, this court is inclined to give him a non-custodial sentence."
Initially charged with murder, Ondiami escaped the hangman's noose after a plea bargain agreement with the State where he agreed to plead guilty to manslaughter.
A probation report presented in court was also in his favour as it recommended that he should serve a non-custodial sentence. By the time the court was making its judgement, he had already cleared the previous sentence.
Ondiami and Muhere while at Kisii Main Prison, where they were cultivating the prison's farm had an altercation that resulted with him hitting Muhere twice with a jembe.
He told the court that Muhere provoked him by touching his private parts. According to the accused, it was an attempt to have unnatural act with him.
Muhere was rushed to Kisii county referral hospital where he was pronounced dead.
"I have considered the circumstances surrounding the case, the accused's mitigation and the probation officer's report. I have further taken note of the mitigation tendered regarding the reason behind the attack on (Muhere ) by the accused. Consequently, the accused is hereby sentenced to serve two years’ probation," the court ruled.