Appeal judges spare man who killed kin from death sentence

A death sentence slapped on an 81-year-old man for killing his younger brother who referred to him as a dog has been lifted.

Appellate judges David Maraga, Daniel Musinga and Gatembu Kairu instead sentenced Henry Okello Dambe to five years in jail after reducing the murder charge to manslaughter.

They ruled that the High Court judge failed to recognise that the old man was insulted and provoked before he committed the offence.

"It seems to us the appellant perceived that the deceased had insulted him by calling him a dog and in the heat of the moment, immediately reacted by striking him with his walking stick on the head. A fight then ensued, which shows he killed the deceased unintentionally," ruled the judges.

The incident happened on the night of April 10, 2010, in East Asembo location in Rarieda, Siaya County, when Dambe had visited his brother Gordon Okiri Ondiso.

According to witnesses, the deceased was having a conversation with his wife when Dambe arrived at around 8pm. It was then that a dog barked, prompting the deceased to call out his brother's name.

"Dambe entered the house and asked who was calling his name and then attacked the deceased, striking him twice on the head with his walking stick and remarking that the deceased did not respect him as an elder. It was then that they started fighting," said one of the witnesses.

The old man overpowered his younger brother, prompting his wife to scream for help.

DECEASED'S SON

When the deceased's son responded and separated the two, he found that his father was unconscious and bleeding from the head. He called for help to take him to hospital but he died on the way.

The matter was then reported to the police and the old man was arrested and subsequently charged with murder.

Dambe appeared before High Court judge Hillary Chemitei, who found him guilty of killing his brother and sentenced him to death on March 26, 2014.

However, the appellate judges ruled that Justice Chemitei erred in passing such a sentence given that the killing was accidental.

"It was incumbent upon the trial court to consider the matter in light of the evidence tendered by the prosecution. Based on that evidence, it seems to us that the appellant, who is a senior citizen born in 1935, did not intentionally kill his brother," ruled the judges.

They added that there was no evidence of malice aforethought, which would have guaranteed a death penalty.

Since the old man has already served two years in jail since he was convicted in 2014, the judges said he would only serve an additional three years.