[2019] KEHC 309 (KLR)
The court found that, following the Supreme Court's decision in Francis K. Muratetu & Another v Republic, the mandatory death penalty for murder is unconstitutional and courts are required to exercise discretion in sentencing. The applicants, having already served a significant period in remand and custody, were...
Source-derived case information.
- Citation
- [2019] KEHC 309 (KLR)
- Parties
- Applicant: Joash Sota Ratemo; Applicant: Nicholas Magati Oigo; Applicant: Julius Nyakundi Masenya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 7 of 2018
- Procedural Posture
- Miscellaneous Application / Resentencing After Conviction and Sentence for Murder
- Outcome
- resentenced
- Judges
- REA Ougo
- Legal Topics
- Murder Sentencing, Death Penalty Unconstitutionality, Resentencing Guidelines, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joash Sota Ratemo
Applicant
Nicholas Magati Oigo
Applicant
Julius Nyakundi Masenya
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Resentencing After Conviction and Sentence for Murder
Legal Issues
- 1 Whether the applicants are entitled to resentencing following the Supreme Court decision declaring the mandatory death penalty unconstitutional.
- 2 What is the appropriate sentence for the applicants in light of the time already served and the circumstances of the case.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis K. Muratetu & Another v Republic, the mandatory death penalty for murder is unconstitutional and courts are required to exercise discretion in sentencing. The applicants, having already served a significant period in remand and custody, were entitled to have their sentences reviewed. Taking into account the total period spent in custody (approximately 10 years, including 7 years remand and 3 years post-sentence), the court determined that an 18-year custodial sentence from the date of original sentence was appropriate and proportionate to the offence and circumstances. The applicants retain the right of appeal within...
Court Disposition
resentenced
Orders
- Each applicant is resentenced to serve 18 years imprisonment from the date of original sentence in court.
- Applicants have a right of appeal within 14 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
MISC. APPLICATION NO. 7 OF 2018
1. JOASH SOTA RATEMO
2. NICHOLAS MAGATI OIGO
3. JULIUS NYAKUNDI MASENYA....................APPLICANTS
-VERSUS-
REPUBLIC...........................................................RESPONDENT
JUDGMENT- RESENTENCE
The applicants, Nicholas Magati, Julius Nyakundi Masenya and Joash Sota Ratemo were charged and convicted of the offence of murder. They were sentenced to suffer death.
In their application they have stated that they were sentenced was later on commuted to a life sentence. They were sentenced in 2016. They have been in jail serving sentence since 2016. They state they were remanded for 7 years. They now seek a resentence in light of the Supreme Court decision in the case of Francis K. Muratetu & Another vs RSCK Petition No.15 of 2015that declared the death sentence to be unconstitutional.
I have read the proceedings and the judgment of the High Court. I also note that they have served about 3 years in jail and were held in custody for about 7 years. The prosecution has suggested that they be resentenced to serve 18 years.
Having considered all the above and the circumstances of the case I resentence the applicants; Joash Sota Ratemo, Nicholas Magati Oigo, Julius Nyakundi Masenya each to serve 18 years from the date of sentence in court. They have a right of appeal within 14 days.
Dated, signed and delivered at Kisii this 3rdday of October 2019.
R.E OUGO
JUDGE
In the presence of;
Joash Sota Ratemo Present in person
Nicholas Magati Oigo Present in Person
Julius Nyakundi Masenya Present in Person
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Ms. Rael Rael