[2019] KEHC 10127 (KLR)
The court held that, following the Supreme Court decision in Muruatetu, the mandatory death penalty for murder is unconstitutional insofar as it precludes consideration of mitigating factors. The court has discretion to impose a lesser sentence where appropriate. In this case, the court considered the convict's age,...
Source-derived case information.
- Citation
- [2019] KEHC 10127 (KLR)
- Parties
- Applicant: Republic; Defendant: David Kiplangat Tonui
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 5 of 2011
- Procedural Posture
- Criminal Law / Sentencing Ruling After Conviction for Murder
- Outcome
- convicted and sentenced to 30 years' imprisonment
- Judges
- EM Ngugi
- Legal Topics
- Murder, Sentencing Guidelines, Mitigating Factors, Death Penalty, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Kiplangat Tonui
Defendant
Procedural Posture
Criminal Law / Sentencing Ruling After Conviction for Murder
Legal Issues
- 1 Whether the mandatory death penalty for murder under section 204 of the Penal Code is constitutional in light of the Supreme Court decision in Muruatetu.
- 2 What sentence is appropriate for the convicted person, considering the mitigating factors presented.
Ratio Decidendi
The court held that, following the Supreme Court decision in Muruatetu, the mandatory death penalty for murder is unconstitutional insofar as it precludes consideration of mitigating factors. The court has discretion to impose a lesser sentence where appropriate. In this case, the court considered the convict's age, status as a first offender, expression of remorse, and the circumstances leading to the offence, including provocation and lack of premeditation. However, the court found that the loss of life was serious and not excused by the convict's anger or the rumours that provoked him. Balancing these factors, the court determined that a custodial sentence of 30 years' imprisonment was...
Court Disposition
convicted and sentenced to 30 years' imprisonment
Orders
- The convict, David Kiplangat Tonui, is sentenced to 30 years' imprisonment.
- The convict has a right of appeal within 14 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
HCCR NO. 5 OF 2011
REPUBLIC.......................................................PROSECUTOR
VERSUS
DAVID KIPLANGAT TONUI.................................ACCUSED
RULING ON SENTENCE
1. In the judgment of this court dated 24th October 2018, I found the convicted person, David Kiplangat Tonui, guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. It was my finding that on the 24th day of January 2011 at Cheptenye Village in Sosiot Township in Kericho within the Rift Valley Province, he murdered Edwin Kiprotich Langat.
2. In mitigation on behalf of the convict, Learned Counsel, Mr. Nyadimo, stated that the convict is an elderly statesman aged 58 with a wife and 6 children. He was remorseful for his actions which had resulted in the death of his colleague and friend. He urged the court to be lenient and be guided by the decision of the Supreme Court in Francis Karioko Muruatetu & Others vs Republic Supreme Court Petition No. 15 of 2015and not impose the death penalty on the convict.
3. In its decision in Muruatetu, the Supreme Court held that the mandatory nature of the death penalty contained in section 204 of the Penal Code was unconstitutional. While the death penalty is not per se unconstitutional, imposing the death sentence without considering mitigating factors or extenuating circumstances violates the right to a fair trial guaranteed under Article 50 (2) of the Constitution. The effect of this decision, to my understanding, is that the court, where the sentence to be imposed for an offence is death, has a discretion to consider mitigating factors in determining what sentence to pass, and is not bound to impose the death penalty.
4. The Supreme Court went further to vary the Sentencing Policy Guidelines promulgated by the Judiciary in 2016. It provided the following guidelines with regard to mitigating factors that are applicable in a re-hearing sentence for the conviction of a murder charge:
(a) The age of the offender;
(b) Being a first offender;
(c) Whether the offender pleaded guilty;
(d) Character and record of the offender;
(e) Commission of the offence in response to gender-based violence;
(f) Remorsefulness of the offender;
(g) The possibility of reform and social re-adaptation of the offender;
(h) Any other factor that the Court considers relevant.
5. I believe that these guidelines provide appropriate criteria for the court to consider in passing sentence on a person convicted of the offence of murder.
6. In a social inquiry report filed before this court on 16th January 2019, it is noted that the convict, a father of six, who is 59 years of age, is remorseful for his actions. The report indicates that he stated to the probation officer that he was provoked by the deceased and acted due to anger as he had heard that the deceased was having an affair with his wife. He was remorseful and was promising not to re-offend.
7. I have noted the mitigation of the convict, and the contents of the social inquiry report. The convict states that he is remorseful, and that he acted out of anger. However, that does not change the fact that he ended the life of a man who was, like him, a son, husband and father. That he ended the life of the deceased in anger, on the basis of rumours, does not excuse him.
8. The penalty imposed by law for the offence of murder is death. However, taking into account the convict’s age, the fact that he is a first offender, and has expressed remorse for his actions, I sentence him to 30 years’ imprisonment.
9. He has a right of appeal in 14 days.
Dated Delivered and Signed at Kericho this 7th day of February 2019
MUMBI NGUGI
JUDGE