[2020] KEHC 6319 (KLR)
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic, the mandatory death sentence for murder is unconstitutional. The petitioners, having been sentenced to death after their conviction for murder, are entitled to resentencing. The court considered the...
Source-derived case information.
- Citation
- [2020] KEHC 6319 (KLR)
- Parties
- Applicant: Mathews Khayadi Yapesa; Applicant: Maurice Odongo; Applicant: Titus Amalembo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 18 & 35 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Ruling After Supreme Court Jurisprudence on Mandatory Sentences
- Outcome
- Death penalty set aside; substituted with forty years' imprisonment for each petitioner, effective from 31st January 2013.
- Judges
- DN Musyoka
- Legal Topics
- Murder Sentencing, Mandatory Sentences, Resentencing Jurisprudence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathews Khayadi Yapesa
Applicant
Maurice Odongo
Applicant
Titus Amalembo
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing Ruling After Supreme Court Jurisprudence on Mandatory Sentences
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional in light of recent Supreme Court and Court of Appeal decisions.
- 2 Whether the petitioners are entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & another vs. Republic, the mandatory death sentence for murder is unconstitutional. The petitioners, having been sentenced to death after their conviction for murder, are entitled to resentencing. The court considered the circumstances of the offence, noting the attack was vicious, unprovoked, and amounted to coldblooded murder. In the absence of mitigation and in view of the aggravating circumstances, the court set aside the death penalty and substituted it with a sentence of forty years' imprisonment for each petitioner, effective from the date of conviction.
Court Disposition
Death penalty set aside; substituted with forty years' imprisonment for each petitioner, effective from 31st January 2013.
Orders
- The death penalty imposed on the petitioners is set aside.
- Each petitioner is sentenced to forty (40) years' imprisonment, effective from the date of conviction, 31st January 2013.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
PETITIONS NOS. 18 AND 35 OF 2018, AND 24 OF 2019
MATHEWS KHAYADI YAPESA.........................................1ST PETITIONER
MAURICE ODONGO...........................................................2ND PETITIONER
TITUS AMALEMBA.............................................................3RD PETITINOER
VERSUS
REPUBLIC....................................................................................RESPONDENT
RULING
1. The petitioners herein were convicted in Kakamega HCCRC No. 10 of 2009, of murder, contrary to section 203, as read with section 204 of the Penal Code, Cap 63, Laws of Kenya, and sentenced to twenty years’ imprisonment each. The petitioners filed an appeal at the Court of Appeal, Kisumu CACRA No. 40 of 2013, where their conviction was affirmed and the sentence substituted with the death penalty.
2. There are recent developments in the Kenyan jurisprudence with respect to mandatory sentences. The Court of Appeal and the Supreme Court has led the way. It is from that background that the petitioners moved this court in the instant cause, through their three separate petitions, which I am hereby disposing of simultaneously. They principally seek re-sentencing in view of the developments that I have referred to here above.
3. I note that upon conviction, the petitioners did not express leniency. I have noted too the circumstances of the commission of the offence. The deceased person was attacked at his home, in broad daylight, and beaten with pangas, axes and hoe sticks. The attack was vicious, and it appears that the attack was not immediately provoked by the deceased. It had all the hallmarks of a coldblooded murder.
4. I shall accordingly, following FrancisKarioko Muruatetu & another vs. Republic [2017] eKLR, set aside the death penalty, and substitute it with a sentence of imprisonment for forty (40) years, effective from the date of their conviction on 31st January 2013. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 7TH DAY OF MAY, 2020
W MUSYOKA
JUDGE