[2021] KEHC 4707 (KLR)
The court found that the mandatory death sentence imposed on the petitioner was unconstitutional following the Supreme Court's decision in Muruatetu. Upon considering the petitioner's advanced age, the circumstances of the offence (a domestic dispute escalating to fatal violence), his lack of prior criminal record,...
Source-derived case information.
- Citation
- [2021] KEHC 4707 (KLR)
- Parties
- Applicant: Andrea Owuor Obuor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 62 of 2020
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Mandatory Death Sentence Set Aside
- Outcome
- Sentence of death set aside; petitioner resentenced to period already served.
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Mitigation Factors, Resentencing, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrea Owuor Obuor
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Mandatory Death Sentence Set Aside
Legal Issues
- 1 Whether the mandatory death sentence for murder is constitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the petitioner given his age, circumstances of the offence, and time already served.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the petitioner was unconstitutional following the Supreme Court's decision in Muruatetu. Upon considering the petitioner's advanced age, the circumstances of the offence (a domestic dispute escalating to fatal violence), his lack of prior criminal record, and the fact that he had already served ten years in custody, the court determined that the period already served constituted sufficient punishment. The court therefore resentenced the petitioner to imprisonment for the period already served, effectively ordering his release.
Court Disposition
Sentence of death set aside; petitioner resentenced to period already served.
Orders
- The mandatory death sentence is set aside.
- The petitioner is sentenced to imprisonment for the period already served.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL PETITION NO. 62 OF 2020
ANDREA OWUOR OBUOR..............................................................................PETITIONER
-VERSUS-
REPUBLIC.........................................................................................................RESPONDENT
RULING
The Petitioner, ANDREA OWUOR OBUOR, was convicted for the offence of Murdercontrary to Section 203as read with Section 204of the Penal Code.
1. During the hearing in relation to sentencing, the learned prosecution counsel, Ms Barasa submitted that the sentence prescribed for the offence of Murder, was mandatory.
2. On his part, Mr. Omolo, the learned advocate for the accused, drew the attention of the court to the fact that the accused was a very old man. He said that the accused was very remorseful for what had happened. It was the finding of the learned trial Judge as follows;
“The totality of the evidence is that the accused engaged in the fight with the deceased. He took a stick, hit the deceased and chased her from her homestead towards the homestead of PW2, where she collapsed and died from an internal injury resulting from the assault.”
3. The post mortem examination revealed that the cause of death was hypovolemic shock due to a raptured spleen, which was attributed to the blunt physical trauma to the abdomen of the deceased.
4. After the learned trial Judge had given the accused the opportunity for mitigation, he made a determination of the sentence in the following words;
“The accused, Andrea Owuor Obudi, has been convicted of the murder of his wife, ELIZABETH AUMA OWUOR. He pleads leniency. I noted that he is an old man of 70 years.
The law however provides for only one sentence, and it is that of death. Accordingly, I sentenced ANDREA OWUOR OBUDI to death as by law.”
5. It is obvious that the trial court deemed the death penalty as mandatory.
6. Pursuant to the pronouncement by the Supreme Court in the case of FRANCIS KARIOKO MURUATETU & ANOTHER Vs REPUBLIC, PETITION NO. 15 OF 2015, the mandatory Death Sentence is unconstitutional. I therefore set aside the said sentence.
7. In re-sentencing the Petitioner, I have taken into account the circumstances in which the tragic incident happened. The Petitioner fought with his wife over the sum of Kshs 200/= which he wanted her to pay back to him. He had used the money to repair her house.
8. The wife abused the Petitioner, giving rise to the fight.
9. He picked up a piece of wood which was lying nearby, where their son was splitting firewood. The Petitioner used the pice of wood to hit the deceased.
10. Although the deceased did not sustain any fractures or any other injuries that could be seen externally, she suffered a raptured spleen.
11. I have also taken into account the fact that the Petitioner was 72 years when the offence was committed.
12. Considering that that was his first criminal offence, at the ripe old age of 72, it follows that the conduct of the Petitioner, prior to that single incident, was generally good.
13. Having taken into account the unique circumstances of the ailing and elderly Petitioner, who has been in prison custody for 10 years, I hold the considered view that the Petitioner has already received sufficient punishment. I therefore sentence him to imprisonment for the period he has already served.
14. It is so ordered.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 7TH DAY OF JULY 2021
FRED A. OCHIENG
JUDGE