https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8792

Ouma v Republic (Criminal Miscellaneous Application E061 of 2025) [2026] KEHC 8792 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 8792 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Miscellaneous Application E061 of 2025 PJO Otieno, J June 22, 2026 Between Elijah Ouma Applicant and Republic Respondent (Arising from original conviction and sentence at the High Court at HomaBay HCCC No. 37 of 2014 and Kisumu Court of Appeal, COA No. 104 of 2018) Ruling 1.Before this Court is an application dated 15th January 2025 brought by the Applicant under the provisions of Section 333(2) of the Criminal Procedure Code. The Applicant seeks orders for a formal re-hearing of his sentence, the setting aside of the death sentence originally imposed on him and the substitution thereof with a lenient and determinate sentence. 2.The application is supported by the Applicant’s sworn affidavit. The Applicant contends that the trial court’s failure to consider his mitigation at the time of sentencing rendered the sentencing process unconstitutional. The Applicant now seeks a second chance at liberty through a proportionate custodial term. 3.The history surrounding the case stems from the fact that the applicant was charged with the offence of murder contrary to Section 204 of the Penal Code. The particulars of the offence were that on the night of 3rd and 4th of September 2014 at Kakelo Dudi sub-location, Kakelo location, Rachuonyo South District, Homa Bay County, he murdered his, Lilian Auma. The Applicant was arrested the following day being, the 4th September 2014 at Mikai and subsequently detained till 31st October 2014 when he was formally arraigned to court for plea taking. 4.Having entered a plea of not guilty, the matter proceeded by full trial and during which period he was in custody. On the 6th of May 2016, the trial court delivered its judgment finding the Applicant guilty as charged. The Applicant was convicted of the charge of murder and was subsequently sentenced to death on the 20th May 2016. 5.Dissatisfied with the trial decision, the Applicant lodged an appeal against both the conviction and sentence at the Court of Appeal at Kisumu, Criminal Appeal No. 104 of 2018. 6.In its decision delivered on the 15th March, 2024, the court of appeal upheld the Appellant’s conviction. The appeal on sentence was however allowed whereby the set aside the death sentence imposed by the trial court and remitted the matter back to the trial court for resentencing. 7.In his application and oral submissions, the Applicant urges this Court to show leniency. It is the Applicant’s case that he is a first-time offender who has spent more than eleven years behind bars. He has expressed deep remorse for the tragic loss of his wife and has dedicated his time in prison to rehabilitation. 8.Records from the Kisumu Maximum GK Prison, where the Applicant is being incarcerated, confirm that he has undergone various educational and vocational training programs. He prays for a second chance to be reformed and proposed that a determinate sentence, taking into account his decade-long incarceration, would serve the ends of justice. 9.Conversely, the Respondent argues for the dismissal for the application on the grounds that if the prosecution is serving a life sentence, as commuted by presidential decree, then to take account of the time spent by the prosecution in custody would be an abuse of the court’s process. The Respondent avers of there being no basis for interference with the sentence imposed by the trial court stating that conviction and sentence can only and properly be interrogated by way of appeal and miscellaneous application. Determination 10.The constitutional standard for sentencing in murder was transformed by the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2017] KESC 2 (KLR). In that case, the Court declared the mandatory death sentence prescribed under Section 204 of the Penal Code to be unconstitutional, as it violated the fundamental rights to a fair trial, human dignity and the separation of powers. That the mandatory nature of the sentence stripped the trial courts of their essential judicial discretion to hear mitigating circumstances and to individualize punishment to fit both the crime and the offender. 11.To streamline the resulting re-hearing process, the Court in Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR) commonly known as Muruatetu II (2021) issued clear guidelines, directing that the principles of individualization and mitigation apply to all murder sentences under Sections 203 and 204 of the Penal Code. 12.These directions were subsequently integrated into the Sentencing Policy Guidelines, 2023. These guidelines establish that a court conducting a sentence re-hearing must balance several factors, including the age of the offender, first-offender status, remorse, character and rehabilitation records, and the impact of the crime on the victims and the broader community. 13.In other words, and in line with the Court of Appeal directions, this court in determining a just and proportionate sentence must balance the principles of sentencing being; retribution, deterrence, prevention and rehabilitation. The court stand guided by the principle of proportionality which requires that the punishment fit both the gravity of the crime and the personal circumstances of the offender. 14.In the instant, the Applicant was charged and convicted of the grave offence of murder. The circumstances of the case are particularly troubling as they involve extreme domestic violence. The home, which should have been a place of safety, became a scene of violence. The level of physical trauma inflicted on the deceased, as indicated in the post-mortem report, shows a high degree of cruelty and disregard for human life. In cases of such domestic violence resulting in death, custodial sentence remains the necessary penalties to deter potential offenders. 15.At the same time, the Court must recognize the constitutional right to hope and the rehabilitative purpose of modern sentencing. The Applicant has spent a significant portion of his life in prison. Records from the Kisumu Maximum GK Prison where he is being incarcerated confirm that he has utilized his incarceration to reform and participate in rehabilitation programs. 16.In comparable post-Muruatetu resentencing cases involving domestic homicide where first offenders have demonstrated genuine reform, courts have generally substituted death sentences with determinate terms ranging from fifteen to twenty-five years. For instance, in John Ebenyo vs Republic [2025] KEHC 12592 (KLR), the High Court at Eldoret substituted death sentence with a twenty-two-year custodial term for a violent domestic assault, taking into account the offender's remorse and rehabilitation. 17.Similarly, in Patrick Shikule Nganyi vs Republic [2025] KEHC 7937, the High Court substituted life sentence with determinate terms of twenty-five years respectively, emphasizing individualized sentencing, proportionality, and the offender's prospects of reform, emphasizing that the sentence must reflect both the gravity of the offence and the offender's reform. 18.Taking into account stare decisis, the underpinning purpose of sentencing in the administration of criminal justice and having weighed the aggravating circumstances of the assault against the Applicant’s clean record prior to the offence, his remorse, and his positive rehabilitation records over the past eleven years, the Court finds that a determinate sentence of twenty (20) years imprisonment is fair, proportionate and just. 19.To give full effect to Section 333(2) of the Criminal Procedure Code, this Court orders that the determinate sentence of twenty (20) years imprisonment shall commence on the date of the Applicant’s arrest, being 4th September 2014. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JUNE, 2026.PATRICK J O OTIENOJUDGE