[2020] KEHC 4752 (KLR)
The court held that, following the Supreme Court's decision in Francis Muruatetu v Republic, the mandatory death sentence under section 296(2) of the Penal Code is unconstitutional. The court further found that the petitioner, having served a significant period in custody and in light of the constitutional...
Source-derived case information.
- Citation
- [2020] KEHC 4752 (KLR)
- Parties
- Applicant: John Onyango Oyatta; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Petition 64 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed in part; petitioner resentenced
- Legal Topics
- Death Penalty, Resentencing, Unconstitutionality of Mandatory Sentences, Rights of Convicted Persons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Onyango Oyatta
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence under section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Muruatetu v Republic.
- 2 Whether the petitioner is entitled to resentencing based on the period already served and the constitutional principles established.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Francis Muruatetu v Republic, the mandatory death sentence under section 296(2) of the Penal Code is unconstitutional. The court further found that the petitioner, having served a significant period in custody and in light of the constitutional principles established, was entitled to resentencing. The court exercised its discretion to resentence the petitioner to a determinate term of imprisonment, taking into account the period already served and the circumstances of the case.
Court Disposition
petition allowed in part; petitioner resentenced
Orders
- The petitioner, John Onyango Oyatta, is resentenced to a period of 20 years imprisonment from the date of sentence by the trial court, 16th April 2002.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
PETITION NO. 64 OF 2019
IN THE MATTER OF ARTICLES 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF ARTICLES 23,25(A), (C), 27(1) (2), 28, 20(1), 50 (2) (Q), 19 (1) (2), 165 OF THE CONSTITUTION
AND
IN THE MATTER OF SECTION 296(2) OF THE PENAL CODE
BETWEEN
JOHN ONYANGO OYATTA...........................PETITIONER
VERSUS
REPUBLIC....................................................RESPONDENT
JUDGMENT
1. By a petition filed on the 29th May 2019 John Onyango Oyatta (‘the petitioner’) seeks resentencing. The petitioner was first convicted by SRM Oyugi’s Court and sentenced to 10 years imprisonment in April 2002. His appeal was dismissed by the High Court in February 2003. The conviction and sentenced were affirmed. He appealed to the Court of Appeal where he was sentenced to death. This sentence was commuted to life imprisonment by the President in 2009.
2. The petitioner claims that he has been in custody for the last 16 years since his arrest and that based on the Supreme Court ruling made on the 14. 12. 2017 the death sentence was declared unconstitutional and degrading hence his application.
3. The application was not opposed. Mr. Otieno for the DPP submitted that the court can resentence the petitioner.
The Supreme Court in the decision of Francis Muruatetu vs R Pet. No.15 of 2015 &anotherdeclared the death sentence to be unconstitutional.
In the case of Jared Koita Injiri v Republic [2019] eKLR the Court of Appeal held that;
“In this case the appellant was sentenced to life imprisonment on the basis of mandatory sentence stipulated by section 8(1) of the Sexual Offences Act, and if the reasoning in the Supreme Case was applied to this provision it too should be considered unconstitutional on the same basis”.
Bearing in mind the Supreme decision and the Court of Appeal decision cited on this Ruling I am of the view that I can resentence the petitioner.
I have considered the facts of the case and period spent by the applicant in remand and jail and I resentence the applicant John Onyango Oyattato a period of 20(twenty) years imprisonment from the date of sentence by the trial court 16th April 2002.
Dated, signedand delivered via Zoom (in line with the Practice Directions dated 17th April 2020) this 22nd day of May 2020.
R.E.OUGO
JUDGE
In the presence of;
John Onyango Oyatta /Petitioner
Mr. Otieno Senior State Counsel Office of the DPP
Rael Court Assistant