[2020] KEHC 7655 (KLR)
The court found that the mandatory death sentence for murder is unconstitutional following the Supreme Court's decision in Muruatetu. In resentencing, the court considered the period the petitioner had already spent in custody, his rehabilitation efforts, and the absence of opposition from both the victim's and the...
Source-derived case information.
- Citation
- [2020] KEHC 7655 (KLR)
- Parties
- Appellant: Bernard Omondi Nyawara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 3 of 2020
- Procedural Posture
- Criminal Resentencing / Judgment
- Outcome
- petition allowed; petitioner resentenced to 20 years' imprisonment from 08th November, 2005
- Judges
- TW Cherere
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Resentencing Guidelines, Constitutionality of Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Omondi Nyawara
Appellant
Republic
Respondent
Procedural Posture
Criminal Resentencing / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing and what sentence is appropriate considering time served and mitigating factors.
Ratio Decidendi
The court found that the mandatory death sentence for murder is unconstitutional following the Supreme Court's decision in Muruatetu. In resentencing, the court considered the period the petitioner had already spent in custody, his rehabilitation efforts, and the absence of opposition from both the victim's and the petitioner's families. The court concluded that the petitioner demonstrated potential for a productive life outside prison and that a determinate sentence was appropriate. Consequently, the petitioner was resentenced to 20 years' imprisonment from the date of his original sentence, taking into account time already served.
Court Disposition
petition allowed; petitioner resentenced to 20 years' imprisonment from 08th November, 2005
Orders
- The petitioner is resentenced to 20 years' imprisonment from 08th November, 2005.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE- J.)
PETITION NO. 03 of 2020
BETWEEN
BERNARD OMONDI NYAWARA..................PETITIONER
AND
REPUBLIC......................................................RESPONDENT
JUDGMENT
1. BERNARD OMONDI NYAWARA, (Petitioner) was convicted and sentenced to death for the offence of murder contrary to Section 203as read with Section 204of the Penal Codein Kisumu High Court Criminal Murder Case No. 32 of 2004 on 08th November, 2005. The conviction and sentence was confirmed by the Court of Appeal in Criminal Appeal no. 12 of 2006.
2. By a petition filed on 19th December, 2019, the Petitioner has petitioned this court for resentencing on the main ground that the death sentence imposed on him is unconstitutional.
3. Ms. Gathu, Senior Prosecution Counsel for the state proposed that Petitioner who is 34 years and has served 16 years be resentenced to 20 years’ imprisonment.
Analysis and Determination
4. At the time of the Petitioner’s conviction, death was the only available sentence for murder.
5. The Supreme Court decision in Francis KariokiMuruatetu& Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence.
6. I have considered The Sentencing Policy Guidelines, 2016and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
7. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court in resentencing a Petitioner is entitled to take into account the period the petitioner has spent in custody in determining the sentence and mitigating and aggravating circumstances.
8. The court record shows that the Petitioner was in custody for 1 year and 8 months during trial and has served 15 years and 3 months. During his stay in prison, the Petitioner has not various diplomas and certificates as a means of reformation.
9. This court requested for the Petitioner’s home report and Victim Impact Assessment report for its consideration during resentence. The home report discloses that the Petitioner who is now 35 years old was not married at the time of his arrest. Both the deceased’s family and Petitioner’s family have moved on and have no grudge against the Petitioner.
10. I have considered that the Petitioner has not undertaken several courses and I have come to the conclusion that he has the potential for productive life outside prison. I therefore re-sentence him to20 years’imprisonment from date ofthe date of his sentence on 08th November, 2005.
DATED AND SIGNED IN KISUMU THIS 05th DAY OF March, 2020
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Amondi & Okodoi
Petitioner- Present in person
For the State- Ms. Gathu