[2020] KEHC 6944 (KLR)
The court found that the mandatory death sentence previously imposed on the petitioner was unconstitutional in light of the Supreme Court's decision in Muruatetu. The court considered the period the petitioner had already spent in custody, his efforts at reformation, and the lack of ongoing animosity between the...
Source-derived case information.
- Citation
- [2020] KEHC 6944 (KLR)
- Parties
- Petitioner: Lucas Ochieng Mwalo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Murder Case 62 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing After Conviction and Sentence for Murder
- Outcome
- Death sentence set aside; petitioner resentenced to 20 years' imprisonment from 5th October, 2016.
- Judges
- TW Cherere
- Legal Topics
- Mandatory Death Sentence, Resentencing, Murder Conviction, Mitigating Circumstances, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucas Ochieng Mwalo
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Conviction and Sentence for Murder
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing and what sentence is appropriate considering the circumstances.
Ratio Decidendi
The court found that the mandatory death sentence previously imposed on the petitioner was unconstitutional in light of the Supreme Court's decision in Muruatetu. The court considered the period the petitioner had already spent in custody, his efforts at reformation, and the lack of ongoing animosity between the families. However, the court also weighed the unprovoked and brutal nature of the offence and the suffering caused to the victim. Balancing these factors, the court determined that a sentence of 20 years' imprisonment from the date of the original sentence was appropriate, replacing the death penalty.
Court Disposition
Death sentence set aside; petitioner resentenced to 20 years' imprisonment from 5th October, 2016.
Orders
- The petitioner is resentenced to 20 years' imprisonment from 5th October, 2016.
- Judgment delivered via video conferencing due to COVID-19 restrictions.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE- J.)
PETITION NO. 62 OF 2019
BETWEEN
LUCAS OCHIENG MWALO.......................................................PETITIONER
AND
REPUBLIC....................................................................................RESPONDENT
JUDGMENT
1. LUCAS OCHIENG MWALO, (Petitioner) was on 05th October, 2016 convicted and sentenced to death for the offence of murder contrary to Section 203as read with Section 204of the Penal Codein Kisumu High Court Criminal Murder Case No. 32 of 2004 on 05th October, 2016. The Petitioner did not prefer an appeal to the Court of Appeal.
2. By a petition filed on 28th October, 2019, the Petitioner has petitioned this court for resentencing on the main ground that the death sentence imposed on him is unconstitutional. He pleaded for leniency and stated that he was arrested in 2011 and was convicted in 2016 after having spent over 5 years in custody.
3. Ms. Gathu, Senior Prosecution Counsel for the state submitted that the Petitioner attacked the deceased with an axe cutting her on the head and legs resulting in a painful death. It was also submitted that the offence was committed in the presence of other persons that were greatly traumatized. The state proposed that Petitioner be resentenced to 25 years’ imprisonment.
Analysis and Determination
4. At the time of the Petitioner’s conviction, death was the only available sentence for murder.
5. The Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence.
6. I have considered The Sentencing Policy Guidelines, 2016and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
7. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court in resentencing a Petitioner is entitled to take into account the period the petitioner has spent in custody in determining the sentence and mitigating and aggravating circumstances.
8. The court record shows that the Petitioner was in custody for about 5 years during trial and has served 4 years and 5 months. As a means of reformation, the Petitioner has during his stay in prison obtained various diplomas and certificates among them Grade III in wielding.
9. This court requested for the Petitioner’s home report and Victim Impact Assessment report for consideration during resentence. The home report discloses that the Petitioner who is now 26 years old was not married at the time of his arrest. Both the deceased’s family and Petitioner’s family have moved on and have no grudge against the Petitioner.
10. The evidence on record demonstrates that the attack on the deceased was unprovoked. The injuries sustained by the deceased leave this court in no doubt that she died a painful death for which the Petitioner ought to be penalized for. I therefore re-sentence him to20 years’imprisonment from date of the date of his sentence on 05th October, 2016.
DATED THIS 14th DAY OF April 2020
T. W. CHERERE
JUDGE
Court Assistants - Ms. Amondi/Ms. Okodoi
Petitioner - Present
For the State - Mr. Onanda
Order
This judgment has been delivered to the parties via video conferencing (skype) due to measures restricting court operations due to the COVID -19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March, 2019.