[2022] KECA 936 (KLR)
The Court of Appeal held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence under section 204 of the Penal Code is unconstitutional. The trial court erred by failing to invite the appellant to mitigate or the prosecution to present aggravating circumstances before sentencing. As...
Source-derived case information.
- Citation
- [2022] KECA 936 (KLR)
- Parties
- Appellant: James Odongo Ogot; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 215 of 2015
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal on sentence allowed; matter remitted to High Court for resentencing.
- Judges
- PO Kiage, M Ngugi, F Tuiyott
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Constitutional Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Odongo Ogot
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the mandatory death sentence under section 204 of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the appellant was denied the opportunity to mitigate before sentencing.
Ratio Decidendi
The Court of Appeal held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence under section 204 of the Penal Code is unconstitutional. The trial court erred by failing to invite the appellant to mitigate or the prosecution to present aggravating circumstances before sentencing. As there was no material on record to guide a review of the sentence, the appropriate course was to remit the matter to the High Court for re-sentencing in accordance with the guidelines set out in Muruatetu (2).
Court Disposition
Appeal on sentence allowed; matter remitted to High Court for resentencing.
Orders
- The matter is remitted to the High Court for re-sentencing on a priority basis.
- The matter shall be mentioned before a Judge of the High Court within fourteen days for appropriate directions as to resentencing.
Full Case Text
Judgment text and source record
21 paragraphs
Ogot v Republic (Criminal Appeal 215 of 2015) [2022] KECA 936 (KLR) (24 June 2022) (Judgment)
Neutral citation: [2022] KECA 936 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Appeal 215 of 2015
PO Kiage, M Ngugi & F Tuiyott, JJA
June 24, 2022
Between
James Odongo Ogot
Appellant
and
Republic
Respondent
(An appeal from the conviction and sentence of the High Court of Kenya at Kisumu (Warsame, J) dated 27th July, 2006 in Kisumu H.c. Criminal Case No. 102 of 2003)
Judgment
1. James Odongo Ogot was convicted for the murder of Michael Otieno Wao which happened on October 29, 2003at Bondo Township. On the same date of conviction, being July 25, 2006, Hon. Warsame, J (as he then was) sentenced the appellant to suffer death.
2. At plenary hearing, counsel for the appellant informed us that although the appeal was against both conviction and sentence, the appellant sought to press on with the challenge on sentence only. In this regard it was submitted that the death sentence is not the only sentence that can be imposed for a conviction under section 204 of the Penal Code.
3. We think that since the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR the question whether the mandatory nature of the death sentence provided for in section 204 of the Penal Code is unconstitutional is moot and counsel for the State readily conceded to this single point of appeal.
4. From the record of Appeal, the trial court neither invited the appellant to make his mitigation nor the Republic to state whether any aggravating circumstances existed, and for that reason we do not have any material on which we can consider and determine a review of the sentence. In the circumstances, the only option open to us is to remit the matter to the High Court for re-sentencing. We trust that the High Court will use the guidelines set out in Francis Karioko Muruatetu and another v Republic [2021] eKLR (Muruatetu (2)) to arrive at an appropriate sentence.
5. The order we make is to remit the matter to the High Court for re-sentencing on a priority date to be given by that court. To that end the matter shall be mentioned before a Judge of that court within fourteen (14) days of the date hereof for appropriate directions as to resentencing.
DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JUNE, 2022. P. O. KIAGE.......................JUDGE OF APPEALMUMBI NGUGI.......................JUDGE OF APPEALF. TUIYOTT.......................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR