[2023] KEHC 26882 (KLR)

Ondara v Republic (Criminal Case 25 of 2021) [2023] KEHC 26882 (KLR) (14 December 2023) (Resentence)

Neutral citation: [2023] KEHC 26882 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case 25 of 2021

RPV Wendoh, J

December 14, 2023

Between

Hassan Ondara

Appellant

and

Republic

Respondent

Resentence

1. Hassan Ondara (accused) was convicted for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and sentenced to suffer death by Justice Mrima on October 31, 2016. The accused was found guilty of murdering his wife.

2. The accused filed an appeal and the Court of Appeal sitting at Kisumu, upheld the conviction but set aside the sentence and sent the file back here for resentencing in line with the Supreme Court decision in Francis Muruatetu & Another vs. Republic (2017) eKLR in that case, the supreme declared the mandatory death sentence as being unconstitutional. The court did not however do away with the death sentence. Only the mandatory nature of the sentence was done away with as it tends to fetter the court’s discretion. In Ruth Wanjiku Kamade (2018) eKLR, the High Court sentenced the accused to death and the death sentence was confirmed by the Court of Appeal because of the aggravating circumstances of the offence.

3. In this case, the accused was sentenced before the Muruatetu decision. In sentencing the court takes into account the law, the Judiciary Sentencing Policy Guidelines, 2016 whose objects are retribution, deterrence, rehabilitation, restorative and denunciation.

4. In the Muruatetu case the Supreme Court laid down some of the aggravating and mitigating factors that may guide the court in sentencing as follows:-1. Age of the offender;2. whether one is a first offender;3. whether the offender pleaded guilty;4. character and record of the offender;5. commission of the offence in response to gender-based violence;6. manner in which the offence committed the victim;7. The physical and psychological effect of the offence on the victim’s family;8. Remorsefulness of the offender;9. Possibility of reform and social integration and re-adaptation of the offender;10. Any other factor that the Court considers relevant.

5. In the sentencing guidelines at paragraph 23. 7 the court is enjoined to consider the aggravating and mitigating factors when sentencing and they include:-1. The use of weapon to threaten or injure the victim, the more dangerous the weapon the higher the culpability;2. Multiple victims;3. Commission of the offence by a gang;4. Intricate planning;5. Serious physical and psychological effect on the victim.

6. The court directed that the parties file submissions.

7. In his submissions, the accused prays for leniency because he has undergone numerous rehabilitation programmes; that he takes responsibility for his actions; he is remorseful and repentant for what he did; that the 12 years he has been in prison have helped transform his life; that the offence was committed after a drinking spree; that he committed the offence at the age of 21 years; that he was provoked to the extent of losing self-control; that he was a first offender and will not pose any danger to the community at large; that he has undergone courses in carpentry and joinery, Biblical studies and should be given a chance to be rehabilited and be integrated back into society. He also prayed that the court do invoke Section 333 (1) of the Criminal Procedure Code in line with the decision of Ahamed Abolfathi Mohammed and Another =vs Republic 2018 EKLR. He prayed that the court sentence him to the term already served or allow him to complete the balance of the sentence on probation.

8. The prosecution counsel also filed his submissions in which he considered the objectives of sentencing in the Judiciary Sentencing Guidelines 2016, and the factors laid down by the Muruatetu case (supra). Counsel observed that the attack on the deceased was premeditated; that the accused after murdering deceased dumped her body in a well and it took police lots of efforts to link him to the offence and due to the extreme decomposition of the body, a DNA test had to be done to establish who it was counsel submitted that the accused took the law into his own hands, killed his wife without any legal justification and caused anguish and psychological trauma to the deceased’s family members; that Accused deserves a deterrent sentence to serve as a lesson to other would be offenders; that his action were in furtherance of gender based violence.

9. I have considered the oral submissions, the objectives of sentencing under the Judiciary Sentencing Guidelines 2016 and the Muruatetu decision on the factors that this court should consider when sentencing. The accused was treated as a first offender. I have taken into account the accused’s mitigation that he is remorseful, he is now a reformed person because of what he has undergone in prison i.e Biblical studies and has learnt several trades. However, from the evidence on record the death of the deceased was as a result of gender based violence. The offence was premeditated and well executed by the accused disposing of the body in a pit / well, hoping it would never be found and he would never be caught. A young life of 22 years was lost. The manner in which the murder was executed and what was recovered of the deceased body must have caused her family inexplicable trauma that they will not recover from soon. At the time of sentence the Petitioner continued to deny the offence of which he now claims to be remorseful. In my view, this is not a case of non-custodial; sentence. Because of the aggravated circumstances, a deterrent sentence is preferable to serve as retribution and deterrent to other would be offenders. I therefore sentence the Petitioners to 35 (thirty-five) years imprisonment. The prison sentence will take effect from the date he was arraigned in court on October 25, 2011 and (will include the sentence already served).

10. It is so ordered.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 14TH DAY OF DECEMBER, 2023. R. WENDOHJUDGEIn Presence Of; -Ms. Kaino for the stateAppellant AbsentMs. Emma/ Phelix –Court Assistant