[2018] KEHC 5551 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence under Section 204 and by extension Section 296(2) of the Penal Code is unconstitutional to the extent that it removes judicial discretion in sentencing. The petitioner is therefore entitled to a re-hearing on...
Source-derived case information.
- Citation
- [2018] KEHC 5551 (KLR)
- Parties
- Applicant: Maurice Odhiambo Wasonga; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 16 of 2018
- Procedural Posture
- Criminal Petition / Ruling
- Outcome
- Application allowed. Original file to be returned for re-hearing on sentence.
- Legal Topics
- Mandatory Death Sentence, Sentencing Discretion, Constitutionality of Penal Code, Rehearing on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Odhiambo Wasonga
Applicant
The Republic
Respondent
Procedural Posture
Criminal Petition / Ruling
Legal Issues
- 1 Whether the mandatory death sentence under Section 204 and Section 296(2) of the Penal Code is unconstitutional.
- 2 Whether the petitioner is entitled to a re-hearing on sentence in light of the Supreme Court decision in Muruatetu.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence under Section 204 and by extension Section 296(2) of the Penal Code is unconstitutional to the extent that it removes judicial discretion in sentencing. The petitioner is therefore entitled to a re-hearing on sentence to allow the trial court to exercise discretion and consider an appropriate sentence. The original lower court file is to be returned to the Senior Principal Magistrate’s Court at Homa Bay for re-hearing on sentence and possible variation of the death sentence by a competent magistrate.
Court Disposition
Application allowed. Original file to be returned for re-hearing on sentence.
Orders
- The application is allowed on the basis of the Supreme Court decision in Muruatetu.
- The original lower court file to be returned to the Senior Principal Magistrate’s Court at Homa Bay for re-hearing on sentence and variation of the death sentence if necessary by any magistrate with competent jurisdiction.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CRIMINAL PETITION NO.16 OF 2018
MAURICE ODHIAMBO WASONGA ..........................PETITIONER
VERSUS
THE REPUBLIC............................................................RESPONDENT
RULING
1] Application considered in the light of the supporting grounds as fortified by the averments contained in the supporting affidavit dated 28th May 2018, deponed by the Petitioner/applicant and since it is not opposed by the state/Respondent, it ought to be allowed and is hereby allowed on the basis of the recent decision of the Supreme Court of Kenya (SCOK) in the case of FRANCIS K. MURUATETU & ANOTHER –VS- REPUBLIC – Petition No.15 of 2015in which it was held that:-
“… Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence …… for avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment.”
(See alsoGODFREY NGOTHO MUTISO –VS- REPUBLIC – CRIMINAL APPEAL NO.17 OF 2008 at Nairobi and WILLIAM OKUNGU KITTINY – CRIMINAL APPEAL NO.56 OF 2013 at Nairobi, both being decisions of the Court of Appeal)
2] The position taken by both the Supreme Court and the Court of Appeal would apply “mutatis mutandis” to any other provision of the Penal Code providing for a mandatory death sentence including Section 296 (2).
3] Accordingly, the original lower court file be returned to the Senior Principal Magistrate’s Court at Homa Bay for re-hearing on sentence and variation of the death sentence if necessary by any magistrate with competent jurisdiction.
4] However, since the original file was not availed at the hearing of this application, the same be availed on 28/6/18 when this matter shall be mentioned to confirm compliance.
5] Ordered accordingly.
J.R. KARANJAH
JUDGE
21. 06. 2018