[2020] KEHC 597 (KLR)
The court found that the mandatory death penalty for murder is unconstitutional following the Supreme Court's decision in Muruatetu, which requires courts to consider mitigating circumstances and the degree of culpability. The applicant had been in custody since 2005, and the court was obligated to consider this...
Source-derived case information.
- Citation
- [2020] KEHC 597 (KLR)
- Parties
- Applicant: Joseph Ondieki Simion; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 15 of 2020
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- death sentence and life imprisonment order set aside; applicant resentenced to 25 years' imprisonment from 24th August 2005
- Judges
- REA Ougo
- Legal Topics
- Resentencing, Mandatory Death Penalty, Mitigation, Custodial Sentence Calculation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ondieki Simion
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death penalty for murder is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant is entitled to resentencing and consideration of time spent in custody prior to sentencing.
Ratio Decidendi
The court found that the mandatory death penalty for murder is unconstitutional following the Supreme Court's decision in Muruatetu, which requires courts to consider mitigating circumstances and the degree of culpability. The applicant had been in custody since 2005, and the court was obligated to consider this period under Section 333 of the Criminal Procedure Code. Given the circumstances of the case, including the loss of life, the period already served, and the need for a definite sentence, the court set aside both the death sentence and the commuted life sentence, resentencing the applicant to 25 years' imprisonment to run from the date of first custody, 24th August 2005.
Court Disposition
death sentence and life imprisonment order set aside; applicant resentenced to 25 years' imprisonment from 24th August 2005
Orders
- The death sentence imposed on Joseph Ondieki Simion is set aside.
- The order commuting the sentence to life imprisonment is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CONSTITUTION PETITION NO. 15 OF 2020
JOSEPH ONDIEKI SIMION........................................................APPLICANT
VERSUS
REPUBLIC...............................................................................RESPONDENT
JUDGMENT
1. Joseph Ondieki Simionthe petitioner/applicant herein filed a petition on 21st May 2020 seeking that he be re-sentenced in view of the Supreme Court’s decision in Francis Karioko Muratetu & Another v Republic Petition No. 15 & 16 of 2015 [2017]eKLR.He was charged and sentenced to death for the offence of murder vide Kisii HCCR No. 48 of 2005. His death sentence was later commuted to life imprisonment by the President. He states that he has been in custody since 2005 when he was arrested. He urges the court to lift the death penalty imposed upon him and award him a definite sentence
2. Mr. Otieno for the State did not oppose the petitioner’s application. He submitted that the Court can resentence the applicant.
3. The Supreme Court in the celebrated case of Francis Karoki Muruatetu (supra) held that the mandatory death penalty was arbitrary and unconstitutional as it did not take into consideration mitigation and varying degrees of gravity and culpability.
4. I have read the judgment dated 26th May 2009. The petitioner was convicted on circumstantial evidence. The body of the deceased was found dead in the room he shared with the applicant. Prior to his death, the deceased and the applicant had had a disagreement. The petitioner informed this court that he has been in custody since 2005. Section 333 (1) & (2)of theCriminal Procedure Code provides that where a person is convicted, any period spent in custody prior to sentencing shall be taken into consideration.
5. I have considered the period the petitioner has been in jail. He was charged on 24th August 2005. He was sentenced by the High Court on 26th May 2009. He was in custody for more than 3 ½ years before he was sentenced. Considering the circumstances of the case, the fact that a life was lost, the period he has served, I set aside the death sentence and the order commuting his sentence to a life sentence and sentence Joseph Ondieki Simionto a period of 25 years’ imprisonment to run from 24th August 2005.
Dated, signedand delivered at KISIIthis 17thday of December 2020.
R.E OUGO
JUDGE
In the Presence of;
Petitioner In person
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Ms. Rael Court Assistant