[2023] KECA 1155 (KLR)
The Court of Appeal held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional. The court considered the appellant's mitigation, the lack of provocation, the manner in which the offence was committed, and the impact on the deceased's family. The court...
Source-derived case information.
- Citation
- [2023] KECA 1155 (KLR)
- Parties
- Appellant: Jeremiah Miruka Oure; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 295 of 2018
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- Appeal against sentence allowed; death sentence set aside; substituted with 20 years imprisonment from date of original judgment.
- Judges
- HM Okwengu, HA Omondi, JM Ngugi
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Constitutional Rights, Resentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Miruka Oure
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the mandatory death sentence for murder under section 204 of the Penal Code is unconstitutional in light of the Muruatetu decision.
- 2 What is the appropriate sentence for the appellant given the circumstances of the offence and mitigation.
Ratio Decidendi
The Court of Appeal held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional. The court considered the appellant's mitigation, the lack of provocation, the manner in which the offence was committed, and the impact on the deceased's family. The court found that a deterrent sentence was necessary but that the death penalty was not justified. Accordingly, the court set aside the death sentence and substituted it with a term of 20 years imprisonment, effective from the date of the original judgment.
Court Disposition
Appeal against sentence allowed; death sentence set aside; substituted with 20 years imprisonment from date of original judgment.
Orders
- The sentence of death imposed by the trial court is set aside.
- The appellant is sentenced to 20 years imprisonment effective from February 9, 2017.
Full Case Text
Judgment text and source record
26 paragraphs
Oure v Republic (Criminal Appeal 295 of 2018) [2023] KECA 1155 (KLR) (3 October 2023) (Judgment)
Neutral citation: [2023] KECA 1155 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Appeal 295 of 2018
HM Okwengu, HA Omondi & JM Ngugi, JJA
October 3, 2023
Between
Jeremiah Miruka Oure
Appellant
and
Republic
Respondent
((Being an appeal from the Judgment/Decree of the Hon J.R. Karanjah (J), delivered on 9th February 2017 in Kisii HCRA No 7 of 2015 Murder Case 7 of 2015 )
Judgment
1. The appellant, Jeremiah Miruka Oure, was tried and convicted by the High Court (Karanja, J) of the offence of murder contrary section 203 as read with section 204 of the Penal Code. He was convicted and sentenced to death.
2. Aggrieved with the judgment of the High Court, the appellant preferred the present appeal in which he filed a memorandum of appeal dated December 13, 2019 raising one single ground which we reproduce verbatim as follows:“The appellant is fully seeking refuge in the provisions of article 165(3)(a)(b), 159(2)(a)(b) and 22(4) of the constitution of Kenya, 2010 bearing in mind the Supreme Court decision in Francis Karioko Muruatetu & anor vs Republic [2017] eKLR. (Muruatetu decision)”
3. In effect, therefore, the appeal before us is against sentence only.The appellant has filed Written Submissions in which he urges that he is remorseful and has learned to be a good citizen. He urges the Court that the death sentence be set aside and substituted with a sentence of 5 years imprisonment.
4. Learned Counsel Mr Okango who appeared for the Director of Public Prosecutions(DPP), for the respondent, has filed Written Submissions in which he argues that the constitutional provisions relied upon by the appellant that is, article 165(3)(a) and (b), article 22(4) and article 159(2)(a)(b) are not relevant to the appellant’s appeal. Nonetheless, Mr Okango concedes on authority of the jurisprudence laid by the Supreme Court in the Muruatetu decision that the mandatory death sentence provided under section 204 of the Penal Code is unconstitutional. On that basis, Mr Okango concedes to the appellant’s plea to have the death sentence set aside and the appellant resentenced.
5. Mr Okango urges that given the circumstances in which the offence was committed, the appellant having shot the deceased with an arrow at close range without any provocation and the malice aforethought evident from the appellant’s statement that he would kill somebody, he deserves a severe penalty for his action. Mr Okango submits that a prison term of 30 years would serve this purpose.
6. From the evidence that was established before the trial court, the appellant suddenly and without any provocation accosted the deceased, shot him with an arrow on the chest and then fled.
7. In his defence, the appellant blamed the deceased for mobilizing a group of people to evict him from his land. He contended that he did not intend to kill the deceased but was only protecting himself. The learned Judge found that there was no such provocation.
8. We have considered the mitigation of the appellant before the trial court, and do sympathise with his young family. Nevertheless. the appellant caused the deceased’s death needlessly and without any provocation, and the deceased’s family are now left without their father. In the circumstances, we agree with Mr Okango that a deterrent sentence is necessary.
9. In our view, a term of 20 years imprisonment would be fair and just in the circumstances in which the offence was committed. Consequently, we allow the appeal in regard to sentence to the extent of setting aside the sentence of the trial court and substituting thereto a sentence of 20 years imprisonment with effect from February 9, 2017, the date of judgment of the trial court.
10. Those shall be the orders of the court.
DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF OCTOBER, 2023. HANNAH OKWENGU................................JUDGE OF APPEALH.A. OMONDI................................JUDGE OF APPEALJOEL NGUGI................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR