[2020] KEHC 6941 (KLR)
The court found that the mandatory death sentence previously imposed on the petitioners was unconstitutional, following the Supreme Court's decision in Muruatetu. The court considered the period the petitioners had already spent in custody (approximately 10 years during trial and 3 years 5 months post-conviction),...
Source-derived case information.
- Citation
- [2020] KEHC 6941 (KLR)
- Parties
- Applicant: Paul Omondi Odipo; Applicant: David Omondi Achayo; Applicant: Charles Oduor Akinyi Ogaja; Applicant: Joseph Onyango Were Oduma; Applicant: Hezbon Otieno Okoth; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 47 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Appeal
- Outcome
- petition allowed in part; petitioners resentenced
- Judges
- TW Cherere
- Legal Topics
- Mandatory Death Sentence, Resentencing, Murder Conviction, Constitutional Rights, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Omondi Odipo
Applicant
David Omondi Achayo
Applicant
Charles Oduor Akinyi Ogaja
Applicant
Joseph Onyango Were Oduma
Applicant
Hezbon Otieno Okoth
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Appeal
Legal Issues
- 1 Whether the mandatory death sentence imposed on the petitioners for murder is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the petitioners upon resentencing, considering time served, rehabilitation, and mitigating/aggravating circumstances.
Ratio Decidendi
The court found that the mandatory death sentence previously imposed on the petitioners was unconstitutional, following the Supreme Court's decision in Muruatetu. The court considered the period the petitioners had already spent in custody (approximately 10 years during trial and 3 years 5 months post-conviction), their rehabilitation efforts, and the views of both the petitioners' families and the victim's family. The attack on the deceased was unprovoked and brutal, warranting a significant custodial sentence. Taking all factors into account, including the need for punishment and the time already served, the court resentenced each petitioner to 20 years' imprisonment from the date of...
Court Disposition
petition allowed in part; petitioners resentenced
Orders
- Each petitioner is resentenced to 20 years' imprisonment from 11th October, 2016.
- Judgment delivered via video conferencing due to COVID-19 restrictions.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL PETITION NO. 47 OF 2019
BETWEEN
PAUL OMONDI ODIPO.............................................1ST PETITIONER
DAVID OMONDI ACHAYO......................................2ND PETITIONER
CHARLES ODUOR AKINYI OGAJA.....................3RD PETITIONER
JOSEPH ONYANGO WERE ODUMA....................4TH PETITIONER
HEZBON OTIENO OKOTH....................................5TH PETITIONER
AND
REPUBLIC.........................................................................RESPONDENT
JUDGEMENT
Introduction
1. On 11th October, 2016, 1st, 3rd, 4th and 5th Petitioners were sentenced and convicted to suffer death sentenced to death for the offence of murder contrary to Section 203as read with Section 204of the Penal Codein Kisumu High Court Criminal Murder Case No. 12 of 2006. The 2nd Petitioner who was at the time of conviction found to be laboring from a serious mental disorder was ordered to be detained at the President’s Pleasure. The conviction and sentence was confirmed by the Court of Appeal in Criminal Appeal no. 12 of 2006.
2. The Petitioners have petitioned this court for resentencing on the main ground that the sentences imposed on them are unconstitutional.
3. Ms. Gathu, Senior Prosecution Counsel for the state submitted that the Petitioners had only served 3 years which was not adequate for rehabilitation and proposed that Petitioners be resentenced to 30 years’ imprisonment.
Analysis and Determination
4. At the time of the Petitioners’ conviction, death was the only available sentence for murder. The 2nd Petitioner has since recovered from his mental disorder.
5. The Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence.
6. I have considered The Sentencing Policy Guidelines, 2016and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
7. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court in resentencing a Petitioner is entitled to take into account the period the petitioner has spent in custody in determining the sentence and mitigating and aggravating circumstances.
8. The court record shows that the Petitioners were in custody for about 10 years during trial and have served 3 years and 5 months. During their stay in prison, the 2nd Petitioner has obtained a certificate in bible studies, 3rd Petitioner has passed Grade II test in tailoring and 5th Petitioner has a diploma in bible studies. The 1st and 4th Petitioners have not undertaken any training as a means of reformation.
9. This court requested for the Petitioners’ home reports and Victim Impact Assessment report for consideration during resentence. The home reports disclose that the Petitioners families recommend resentence whereas the victim’s widow and children are content with the log terms of sentence imposed on the Petitioners who for no justifiable cause killed the deceased who was their sole bread winner.
10. I have considered that the Petitioners attack on the deceased was unprovoked and that he died a painful death when they set upon him with jembes and sticks in the presence of his wife as a result of which he died. The Petitioners ought to be penalized for the heinous crime they committed. Since the Petitioners were in custody for 10 years during the trial, I resentence them to 20 years’imprisonment from date of the date of his sentence on 11th October, 2016.
DELIVERED THIS 14thDAY OF April,2020
T. W. CHERERE
JUDGE
Court Assistants - Ms. Amondi/Ms. Okodoi
Petitioners 1-5 - Present
For the State - Mr. Onanda
Order
This judgment has been delivered to the parties via video conferencing (skype) due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March, 2019.