[2021] KEHC 3891 (KLR)
The court found that the applicant's claim that the death sentence is unconstitutional is unfounded. The death sentence remains constitutional under Article 26(3) of the Constitution, and the Francis Muruatetu case did not abolish the death penalty but only addressed its mandatory nature. The applicant's sentence...
Source-derived case information.
- Citation
- [2021] KEHC 3891 (KLR)
- Parties
- Applicant: Nicholas Omondi Ndar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E006 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Application Challenging Constitutionality of Sentence
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Right to Fair Trial, Sentencing Principles, Constitutionality of Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Omondi Ndar
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application Challenging Constitutionality of Sentence
Legal Issues
- 1 Whether the death sentence imposed on the applicant is unconstitutional.
- 2 Whether the applicant is entitled to relief based on the Francis Muruatetu decision.
- 3 Whether the applicant was denied the opportunity to mitigate before sentencing.
Ratio Decidendi
The court found that the applicant's claim that the death sentence is unconstitutional is unfounded. The death sentence remains constitutional under Article 26(3) of the Constitution, and the Francis Muruatetu case did not abolish the death penalty but only addressed its mandatory nature. The applicant's sentence had already been commuted to life imprisonment by the President, which is the least severe sentence as per Article 50(2)(p). Furthermore, the applicant failed to provide any proceedings or judgments to support his assertion that he was denied the opportunity to mitigate before sentencing. Consequently, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- File closed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CONSTITUTIONAL PETITION NO. E006 OF 2021
CORAM: HON. R.E. ABURILI, J
NICHOLAS OMONDI NDAR.........................................................APPLICANT
VERSUS
REPUBLIC...................................................................................RESPONDENT
(Application arising from Kisumu High Court Criminal Appeal No. 97/2006 AND
Originating from Siaya Principal Magistrate’s Court in Cr. Case No. 1257 of 2005)
RULING
1. The applicant in his application filed on 26/8/2021 Nicholas Omondi Ndar claims that he was sentenced to death which is unconstitutional, upon conviction for the offence of Robbery with violence.
2. He appealed to the High court which appeal No. 97/2016 at Kisumu was dismissed. He does not indicate whether he filed any appeal to the Court of Appeal.
3. From his affidavit in support, the death sentence was commuted to life imprisonment by the H.E. the President. That being the case, the applicant’s application is unfounded as he is serving life imprisonment which is least severe as espoused in Article 50(2) (p) of the Constitution. Furthermore, Death sentence is not unconstitutional. The Francis Muruatetu case did not outlaw death sentence.
4. Article 26(3) of the Constitution is clear on deprivation of life by authority of the law or the Constitution.
5. The applicant did not file any proceedings or judgment to support his assertion or for this court to establish whether he was denied the opportunity to mitigate before he was sentenced and the circumstances under which the heinous offence was committed.
6. Accordingly, I find this application bereft of merit. The same is hereby dismissed.
7. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 21ST DAY OF SEPTEMBER 2021
R.E. ABURILI
JUDGE