[2017] KEHC 5809 (KLR)
The court found that, despite the ongoing public debate and calls for abolition of the mandatory death sentence for murder, the law as it stands under Section 204 of the Penal Code prescribes only the death penalty for a conviction of murder. The court cited binding precedent and statutory authority, holding that it...
Source-derived case information.
- Citation
- [2017] KEHC 5809 (KLR)
- Parties
- Applicant: Republic of Kenya; Defendant: Brian Kirwa Bowen
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 23 of 2012
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Accused sentenced to the mandatory death penalty for murder.
- Judges
- JK Mulwa
- Legal Topics
- Murder, Sentencing, Mandatory Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic of Kenya
Applicant
Brian Kirwa Bowen
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused is liable to the mandatory death sentence for the offence of murder under Kenyan law.
- 2 Whether the court has discretion to impose any sentence other than the mandatory death penalty for murder.
Ratio Decidendi
The court found that, despite the ongoing public debate and calls for abolition of the mandatory death sentence for murder, the law as it stands under Section 204 of the Penal Code prescribes only the death penalty for a conviction of murder. The court cited binding precedent and statutory authority, holding that it has no discretion to impose any other sentence until Parliament amends the law. The accused was therefore sentenced to the mandatory death penalty as required by law.
Court Disposition
Accused sentenced to the mandatory death penalty for murder.
Orders
- The accused is sentenced to suffer the mandatory death sentence as provided by law.
- Right of appeal within 30 days explained to the accused.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL CASE NUMBER 23 OF 2012
REPUBLIC OF KENYA.................................................PROSECUTOR
VERSUS
BRIAN KIRWA BOWEN .......................................................ACCUSED
SENTENSING
The accused, Brian Kirwa Bowen was on the 2nd June 2016 found guilty of the offence of Murder Contrary to Section 203as read withSection 204 of the Penal Code Chapter 63 Laws of Kenya.
In his mitigation by his Advocate Peter Chege the court was urged that the accused was remorseful and did not intend to commit the offence against his only brother but which the court found otherwise.
The Advocate urged the court that there is a spirited clamour by the people of Kenya for the abolition of the mandatory death sentence the only penalty prescribed under the laws of Kenya for the offence of Murder.
Section 204 of the Penal Code states:
“Any person convicted of murder shall be sentenced to death.”
The death sentence is the only sentence prescribed under the law and is mandatory.
The court agrees with the accused's Advocate that there has been a spirited clamour for the abolishment of the death sentence and that no such sentence has been effected since 1987.
A three judge bench of the High court in Jackson Maina Wangui -vs- Republic (2014) e KLR in Criminal Case No. 35 of 2015faced with questions of the constitutionality and the curtailment of Judges discretion in sentencing rendered themselves that until such a time that the people of Kenya through legislation by parliament abolishes such sentence, it remains constitutional and legal as is currently prescribed, and that a court cannot pass any other sentence than the mandatory death sentence in convicting an accused person in respect of the offence of murder. Until such time that the law is abolished and/or amended to give a Judge discretion, my hands are tied.
I therefore proceed to sentence the accused to suffer the mandatory death sentence as by the law provided.
COURT: Right of appeal within 30 days has been explained to the accused person.
Dated, Signed and Delivered this 27th Day of April 2017.
J.N. MULWA
JUDGE