[2017] KEHC 8131 (KLR)
The court, after considering the mitigation advanced on behalf of the accused and the presentence report indicating positive character and no previous criminal record, held that the law under section 204 of the Penal Code prescribes a mandatory death sentence for murder. The court is bound by statutory provisions...
Source-derived case information.
- Citation
- [2017] KEHC 8131 (KLR)
- Parties
- Applicant: Republic; Defendant: Clifford Otieno Oduny
- Court
- High Court
- Court Station
- High Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7 of 2015
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Accused sentenced to death for murder.
- Legal Topics
- Sentencing Principles, Murder, Death Penalty, Mitigation, Penal Code Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Clifford Otieno Oduny
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should be sentenced to death for the offence of murder under section 203 as read with section 204 of the Penal Code.
- 2 Whether the accused's mitigation and positive character should affect the sentence imposed.
Ratio Decidendi
The court, after considering the mitigation advanced on behalf of the accused and the presentence report indicating positive character and no previous criminal record, held that the law under section 204 of the Penal Code prescribes a mandatory death sentence for murder. The court is bound by statutory provisions and Court of Appeal precedent, which affirm that the death penalty must be imposed for murder convictions unless Parliament amends the law. The court thus sentenced the accused to death, explaining that any change to the law must come from legislative action, not judicial discretion.
Court Disposition
Accused sentenced to death for murder.
Orders
- The accused is sentenced to death as provided under section 204 of the Penal Code.
- The right of appeal within 14 days is explained to the accused.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO
CRIMINAL CASE NO. 7 OF 2015
REPUBLIC………………..PROSECUTOR
VERSUS
CLIFFORD OTIENO ODUNY.....ACCUSED
SENTENCE
In determining the sentence I have regards to the provisions of section 204 of the Penal Code. I have taken into account the mitigation of the accused as submitted by Mr. Itaya for the accused. The presentence report by the probation officer reveals that the accused is a man of positive character. There are also no previous offences recorded against the accused with the criminal investigations directorate in sentencing the accused.
I am guided by the decisions of the Court of Appeal in cases of this nature on sentencing, more specifically the case of Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR where the court observed as follows:
“We are aware that in the recent past, there have been no executions of the death sentence…..we however are not convinced that the death sentence is not a fix sentence to be meted out and carried out as provided for in the law.
Should Kenyans decide that it is time to remove the death sentence from our statute books, then they shall do so through their representatives in parliament. In the meantime the sentence of death shall continue to be imposed in case of conviction where the law provides.”
Accordingly I sentence the accused to death as provided for under section 204 of the Penal Code for a conviction for the offence of murder under section 203 of the Penal Code.
14 days right of appeal explained.
…………………………………..
R. NYAKUNDI - JUDGE
30/1/2017
In the presence of the accused
Mr. Akula for the Director of Public Prosecutions
Mr. Itaya advocate for the accused.
Mr. Mateli – Court Assistant