[2021] KECA 389 (KLR)
The Court of Appeal held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and courts must exercise discretion in sentencing. In this case, the appellant killed his brother during a fight over a land boundary dispute, and although it was not clear...
Source-derived case information.
- Citation
- [2021] KECA 389 (KLR)
- Parties
- Appellant: Josephat Lumuzi Shitabachi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 27 of 2016
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- Appeal on sentence allowed; death sentence set aside and substituted with twenty-five years' imprisonment from date of conviction.
- Judges
- F Sichale, S ole Kantai
- Legal Topics
- Murder, Sentencing, Mandatory Death Penalty, Mitigation, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Lumuzi Shitabachi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the mandatory death sentence for murder under Section 204 of the Penal Code is constitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the appellant given the circumstances of the offence and mitigation presented.
Ratio Decidendi
The Court of Appeal held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and courts must exercise discretion in sentencing. In this case, the appellant killed his brother during a fight over a land boundary dispute, and although it was not clear who started the fight, the appellant used a stick to inflict fatal injuries. Considering the circumstances, including the familial relationship and the nature of the dispute, the court found that a sentence of twenty-five years' imprisonment was appropriate. The death sentence imposed by the trial court was therefore set aside and substituted with a term of imprisonment.
Court Disposition
Appeal on sentence allowed; death sentence set aside and substituted with twenty-five years' imprisonment from date of conviction.
Orders
- The sentence of death imposed by the trial court is set aside.
- The appellant is sentenced to twenty-five years' imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: ASIKE-MAKHANDIA, SICHALE & KANTAI, JJ.A.)
CRIMINAL APPEAL NO. 27 OF 2016
BETWEEN
JOSEPHAT LUMUZI SHITABACHI .....................................APPELLANT
AND
REPUBLIC..............................................................................RESPONDENT
(Being an appeal from the Judgment of the High Court of Kenya at Kakamega (Sitati, J.) dated 25thJune, 2015
in
HC. CR.A. No. 46 of 2010)
******************
JUDGMENT OF THE COURT
When this appeal came up for virtual hearing before us on 5th May, 2021 learned counsel Mr. Byron Menezes appeared for the appellant while learned State Counsel Mr. Shitsama appeared for the Director of Public Prosecutions. Both counsel had filed written submissions.
The Notice of Appeal on record dated 3rd November, 2015 with a thumb print of the appellant and signed by the Officer in Charge, G.K. Prison, Kakamega Main, indicates that the appeal is against sentence. Counsels’ submissions are on both conviction and sentence but the appellant (Joseph Lumuzi Shitabachiaddressing us directly from Kibos Maximum Security Prison), confirmed that the appeal is against sentence only.
The circumstances in which the deceased (the late Benedicto Lukhaye Shitachi) died were unfortunate. According to the witnesses who testified before the trial Judge the deceased and the appellant engaged in a fight on the morning of 16th November, 2010. The appellant had a stick which he used to repeatedly assault the deceased on the head and the deceased died at Kakamega Provincial Hospital where he had been rushed to by prosecution witnesses for treatment. The appellant and the deceased were brothers and were fighting over a dispute involving boundary to land. None of the witnesses testified on who started the fight but there was direct evidence that the appellant was seen by prosecution witnesses repeatedly hitting the deceased on the head using a stick which was produced in Court as part of the evidence. The doctor who performed post mortem testified that the deceased died after suffering cerebral oedema secondary to blunt force trauma following assault.
The appellant upon conviction for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code was sentenced to death by Sitati, J.
The offence of murder provided in Section 203 of the Penal Code carries a sentence of death under Section 204 of the said Code.
The learned Judge who sentenced the appellant considered a Probation Officer’s Report dated 22nd July, 2015 where it was indicated that the appellant was not a first offender as he had earlier been sentenced to a 3 year probation after assaulting the deceased’s wife on 14th April, 2004. The appellant filed before us what he calls “Mitigation Grounds of Appeal” on 20th February, 2020. He asks us to be kind to him and award him an appropriate sentence.
The Supreme Court of Kenya was asked to answer the question whether it was constitutional for Parliament to provide mandatory death sentence in an offence of murder – Francis Karioko Muruatetu & Others v Republic [2017] eKLR. The Court returned an answer that it was unconstitutional for Parliament to do that. The decision in that case has freed courts from the earlier strictures – the Court will award a sentence proportionate to the offence and consider any particular peculiar circumstances of a case.
In Daniel Kipyegon Toroitich v Republic [2021] eKLR where the appellant had been sentenced to life imprisonment the sentence was reduced to imprisonment for 25 years from the date of conviction.
In Eliphas Toili v Republic [2009] eKLR the appellant who had been sentenced to death for the offence of murder had the sentence reduced to 10 years on appeal.
We have considered the circumstances of this case where the appellant killed his brother as they fought over a dispute on boundary to land. It is not known who started the fight but it is known that the appellant was armed with a stick which he used to beat his brother the deceased who suffered injuries leading to death. In the circumstances we consider that an appropriate sentence of imprisonment is called for in this case. We set aside the sentence of death awarded by the trial court and substitute thereof a sentence of twenty-five years’ imprisonment from the date of conviction.
Dated and delivered on this 23rdday of July, 2021.
ASIKE-MAKHANDIA
......................................
JUDGE OF APPEAL
F. SICHALE
......................................
JUDGE OF APPEAL
S. ole KANTAI
.....................................
JUDGE OF APPEAL
I certify that this is a truecopy of the original.
Signed
DEPUTY REGISTRAR