[2012] KEHC 5258 (KLR)
The court held that while Section 204 of the Penal Code prescribes a mandatory death sentence for murder, the Constitution recognizes the right to life but allows for its limitation where authorized by law. The Court of Appeal in Godfrey Ngotho Mutiso v Republic found the mandatory death penalty to be inconsistent...
Source-derived case information.
- Citation
- [2012] KEHC 5258 (KLR)
- Parties
- Defendant: James Njiru John; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 9 of 2008
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- Accused sentenced to twenty-five years imprisonment.
- Legal Topics
- Murder, Sentencing, Constitutional Right to Life, Mandatory Death Penalty, Mitigation, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Njiru John
Defendant
Republic
Respondent
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the mandatory death sentence for murder under Section 204 of the Penal Code is constitutional in light of Article 26 of the Constitution.
- 2 Whether the accused is entitled to mitigation and a sentence other than death for the offence of murder.
- 3 What is the appropriate sentence for the accused given the circumstances of the case.
Ratio Decidendi
The court held that while Section 204 of the Penal Code prescribes a mandatory death sentence for murder, the Constitution recognizes the right to life but allows for its limitation where authorized by law. The Court of Appeal in Godfrey Ngotho Mutiso v Republic found the mandatory death penalty to be inconsistent with constitutional protections, allowing courts to consider mitigation and individual circumstances. In this case, the accused was a first offender, had been in custody for over three years, and expressed remorse. However, the brutality of the offence was also considered. Balancing these factors, the court determined that a sentence of twenty-five years imprisonment, rather...
Court Disposition
Accused sentenced to twenty-five years imprisonment.
Orders
- The accused is sentenced to twenty-five (25) years imprisonment.
- Right of appeal within 14 days explained to the accused.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL CASE NO. 9 OF 2008
JAMES NJIRU JOHN......................................................................................ACCUSED
VERSUS
REPUBLIC...............................................................................................PROSECUTION
RULING ON SENTENCE
The accused person was on 8/12/2011 convicted of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Mr. Mugambi mitigated on his behalf saying the accused has no previous records of misconduct. He was a first offender and had been in custody since October 2008 (about 3 years 3 months). To him this was a period of torture as he was uncertain of the outcome of the case. He further said the sentence for murder under the Penal Code is death. But Article 26 of the Constitution provides that the right to life is absolute and so the Penal Code was inconsistent with the Constitution which is the supreme law. He therefore prayed for a lenient sentence.
There is no dispute that Section 204 of the Penal Code provides for a death sentence for one convicted for murder. The operative word is shall. However, in the case of GODFREY NGOTHO MUTISO VS REPUBLIC CRIMINAL APPEAL NO. 17 OF 2008the Court of Appeal had this to say on the death sentence under Section 204 of the Penal Code.
“On our own assessment of the issue at hand and the material placed before us, we are persuaded, Section 204 of the Penal Code which provides for a mandatory sentence is antithetical to the Constitutional provisions on protection against inhuman and degrading punishment on treatment or fair trial. We note that while the Constitution itself recognizes the death penalty as being lawful, it does not say anywhere that when a condition of murder is recorded only the death sentence shall be imposed. We declare that Section 204 shall, to the extent that it provides that the death sentence in respect of the crime of murder is inconsistent with the letter and spirit of the Constitution which as we have said, makes no such mandatory provision”.
This Judgment was delivered under the old Constitution. I have been referred to the new Constitution Article 26(1) which provides:-
“Every person has the right to life”
Article 26(3) states
“A person shall not be deprived of his life intentionally, except to the extent authorized by this Constitution or other written law”.
This to me means that if the taking away of the right to life is authorized by law, then it ceases to be an absolute right.
The Penal Code is part of the written law and it authorizes death as a sentence. However, from the informed Judgment of their Lordships in the GODFREY NGOTHO MUTISO CASE (SUPRA), I do find that the accused may be given a chance to mitigate and the court may consider the mitigation alongside all the circumstances of the case and come to the conclusion that a death sentence may not be the only sentence.
I therefore conclude that since the circumstances of each case vary then each case must be considered separately. Considering the case at hand I find that the accused has been in custody for slightly above 3 years. He is a first offender and is a young adult.
However, the brutality with which the deceased was killed cannot just be wished away. Accused says he is remorseful. I hereby sentence him to twenty five (25) years imprisonment.
Right to Appeal within 14 days explained.
DELIVERED, SIGNED AND DATED AT EMBU THIS 8TH DAY OF FEBRUARY 2012.
H. I. ONG’UDI
JUDGE
In the presence of:-
Ms. Matiru for State
Ms. Njeru for Mr. Mugambi for Accused
Njue CC
Accused present in person