[2018] KEHC 5654 (KLR)
The court held that, following the Supreme Court's decision in Francis K. Muruatetu & Another v Republic, the mandatory death sentence under Section 204 of the Penal Code is unconstitutional to the extent of its mandatory nature. This principle extends to other provisions such as Section 296(2). As the State did not...
Source-derived case information.
- Citation
- [2018] KEHC 5654 (KLR)
- Parties
- Appellant: Dickson Okello Ouko; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 11 of 2018
- Procedural Posture
- Criminal Petition / Ruling on Application for Resentencing
- Outcome
- Application for resentencing allowed; matter remitted to trial court for rehearing on sentence.
- Legal Topics
- Mandatory Death Sentence, Resentencing, Penal Code Section 204, Penal Code Section 296 2, Constitutional Invalidity, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Okello Ouko
Appellant
The Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the mandatory death sentence under Section 204 and Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing following the invalidation of the mandatory death sentence.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Francis K. Muruatetu & Another v Republic, the mandatory death sentence under Section 204 of the Penal Code is unconstitutional to the extent of its mandatory nature. This principle extends to other provisions such as Section 296(2). As the State did not oppose the application, and in light of the binding precedent, the petitioner's application for resentencing must be allowed. The matter is remitted to the trial court for rehearing on sentence and possible variation of the death sentence, pending the availability of the original lower court file.
Court Disposition
Application for resentencing allowed; matter remitted to trial court for rehearing on sentence.
Orders
- The original lower court file to be returned to the Senior Principal Magistrate’s Court at Homa Bay for rehearing on sentence and variation of the death sentence if necessary by any magistrate with competent jurisdiction.
- The original file to be availed on 28/6/18 for mention to confirm compliance.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CRIMINAL PETITION NO.11 OF 2018
DICKSON OKELLO OUKO …... PETITIONER
VERSUS
THE REPUBLIC ………………. RESPONDENT
RULING
1. Application considered in the light of the supporting grounds as fortified by the averment contained in the supporting affidavit dated 28th May 2018, deponed by the petitioner/applicant and since it is not opposed by the State/Respondent, it ought to be allowed and is hereby allowed on the basis of the recent decision of the Supreme Court of Kenya (SCOK) in the case of FRANCIS K. MURUATETU & ANOTHER –VS- REPUBLIC Petition NO.15 of 2015,in which it was held:-
“…..Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for mandatory death sentence ……… for avoidance of doubt this decision does not outlaw the death penalty which is still applicable as a discretionary maximum punishment.”
(See also GODFREY NGOTHO MUTISO –VS- REPUBLIC – CRIMINAL APPEAL NO.17 OF 2008 and WILLIAM OKUNGU KITTINY – CRIMINAL APPEAL NO.56 OF 2013 at Kisumu, both being decisions of the Court of Appeal)
2. The position taken by both the Supreme Court and the Court of Appeal would apply “mutatis mutandis” to any other provision of the Penal Code providing for a mandatory death sentence including Section 296 (2).
3. Accordingly, the original lower court file be returned to the Senior Principal Magistrate’s Court at Homa Bay for re-hearing on sentence and variation of the death sentence if necessary by any magistrate with competent jurisdiction. However, since the original file was not availed at the hearing of this application, the same be availed on 28/6/18 when this matter shall be mentioned to confirm compliance.
Ordered accordingly.
J.R. KARANJAH
JUDGE
21. 06. 2018