[2020] KEHC 3237 (KLR)
The court found that the imposition of a mandatory death sentence on the applicant was unconstitutional in light of the Supreme Court's decision in Francis Karioko Mururatetu & Another vs Republic [2017] eKLR. The court considered the applicant's 15 years already served, his conduct in prison, his mitigation, and...
Source-derived case information.
- Citation
- [2020] KEHC 3237 (KLR)
- Parties
- Applicant: Benard Otieno Ngoge alias Bernard Ouma Weda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 2 of 2020
- Procedural Posture
- Constitutional Criminal Petition / Resentencing After Conviction and Sentence for Murder
- Outcome
- Death sentence set aside; applicant resentenced to 30 years' imprisonment from 20th April 2010.
- Judges
- REA Ougo
- Legal Topics
- Mandatory Death Sentence, Right to Fair Trial, Resentencing, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Otieno Ngoge alias Bernard Ouma Weda
Applicant
Republic
Respondent
Procedural Posture
Constitutional Criminal Petition / Resentencing After Conviction and Sentence for Murder
Legal Issues
- 1 Whether the mandatory death sentence imposed on the applicant was unconstitutional.
- 2 Whether the applicant is entitled to resentencing in light of the Supreme Court decision in Francis Karioko Mururatetu & Another vs Republic [2017] eKLR.
- 3 What is the appropriate sentence for the applicant considering the circumstances of the case and mitigation.
Ratio Decidendi
The court found that the imposition of a mandatory death sentence on the applicant was unconstitutional in light of the Supreme Court's decision in Francis Karioko Mururatetu & Another vs Republic [2017] eKLR. The court considered the applicant's 15 years already served, his conduct in prison, his mitigation, and the fact that a life was lost. Balancing these factors, the court set aside the death sentence and resentenced the applicant to 30 years' imprisonment from the date of the original sentence, 20th April 2010.
Court Disposition
Death sentence set aside; applicant resentenced to 30 years' imprisonment from 20th April 2010.
Orders
- The death sentence imposed on the applicant is set aside.
- The applicant is resentenced to 30 years' imprisonment from 20th April 2010.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CONSTITUTIONAL CRIMINAL PETITION NO. 2 OF 2020
BENARD OTIENO NGOGE...................................................................APPLICANT
VERSUS
REPUBLIC..........................................................................................RESPONDENT
JUDGMENT
1. Benard Otieno Ngoge alias Bernard Ouma Weda (‘the applicant’’ was charged with the offence of murder before the High Court here in Kisii. By a judgment dated 20th April 2010 he was found guilty as charged and convicted of the offence of murder and sentenced to death.
2. Via a petition filed on the 12th February 2020 the applicant avers that the imposition of the mandatory death sentence on him was arbitrary and unconstitutional and that the execution of the same has denied him his rights to a fair trial as stipulated under Article 25 (c) and 50 (2) of the Constitution. He avers further that he has served 15 years, has lived well with his fellow inmates and that he has also acquired spiritual rehabilitation skills that will assist him. That this was his first offence his childhood. That he wishes to be allowed to go back home. In his oral submissions he reiterated his plea in his petition and sought to be resentenced.
3. Mr. Otieno for the State had no objection to the applicant’s ‘plea to be resentenced. He noted that the applicant was given a mandatory sentence.
4. The Supreme Court in the case of Francis Karioko Mururatetu & Another vs Republic [2017] eKLR held that the death sentence is unconstitutional.
5. I have considered that the applicant has been in jail for a period of 15 years. Taking into account the circumstances of the case and that a life was lost, the period the applicant was in custody before sentence, the period he has been in jail and his mitigation, I set aside the death sentence and resentence the applicant to 30 years’ imprisonment from 20th April 2010, the date of sentence.
Dated, signed and delivered at KISII this 26th day of June 2020.
R. OUGO
JUDGE
In the presence of;
Applicant In Person
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Ms. Rael Court Assistant.