[2014] KEHC 1140 (KLR)
Although the Penal Code prescribes a mandatory death sentence for murder, the court is bound by the Constitution to uphold the right to life. The court found that the accused's defence of intoxication to the point of insanity was raised and rejected at trial. Considering the senselessness of the act and the need for...
Source-derived case information.
- Citation
- [2014] KEHC 1140 (KLR)
- Parties
- Applicant: Republic; Defendant: David Silale Ekeno; Defendant: Francis Oyie Lomoning
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 50 of 2008
- Procedural Posture
- Criminal Case / Sentencing Ruling After Conviction
- Outcome
- Both accused sentenced to thirty years imprisonment each, sentence to run from date of arrest and detention.
- Judges
- MJA Emukule
- Legal Topics
- Murder, Sentencing, Right to Life, Constitutionality of 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
Applicant
David Silale Ekeno
Defendant
Francis Oyie Lomoning
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling After Conviction
Legal Issues
- 1 Whether the accused should be sentenced to death as provided under Section 204 of the Penal Code.
- 2 Whether the right to life under Article 26 of the Constitution affects the mandatory death sentence for murder.
- 3 Whether intoxication to the point of insanity is a mitigating factor in sentencing for murder.
Ratio Decidendi
Although the Penal Code prescribes a mandatory death sentence for murder, the court is bound by the Constitution to uphold the right to life. The court found that the accused's defence of intoxication to the point of insanity was raised and rejected at trial. Considering the senselessness of the act and the need for a deterrent sentence, but also the constitutional imperative to enhance rather than detract from the right to life, the court imposed a custodial sentence of thirty years imprisonment for each accused, to run from the date of arrest and detention, instead of the death penalty.
Court Disposition
Both accused sentenced to thirty years imprisonment each, sentence to run from date of arrest and detention.
Orders
- Each accused is sentenced to thirty years imprisonment to run from the date of their arrest and detention.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL CASE NO. 50 OF 2008
REPUBLIC..........................................................................................PROSECUTOR
VERSUS
DAVID SILALE EKENO........................................................................1ST ACCUSED
FRANCIS OYIE LOMONING................................................................2ND ACCUSED
RULING
The accused herein were on 13th June 2014 convicted of the offence of murder contrary to Section 203 of the Penal Code (Cap. 63, Laws of Kenya). I called upon counsel to submit in terms of Section 329 of the Criminal Procedure Code (Cap. 75, Laws of Kenya), on the question of sentence.
Counsel submitted to the court that the accused were remorseful, and that both of them were drunk, to the point of being temporarily insane at the time when they committed the offence.The Prosecuting Counsel on his part submitted that there was no record on any of the accused; but submitted that they should be sentenced in terms of Section 204 of the Penal Code.
Section 204 provides that any person found guilty and convicted of the offence of murder shall be sentenced to death. However Article 26 of the Constitution of Kenya 2010, entrenches the right to life under the Bill of Rights Article 23 of the Constitution enjoins the courts to enforce the Bill of Rights by giving such an interpretation that enhances rather than detracts from the right. That one life was senselessly lost is bad enough. I would therefore uphold the right to life for both accused.
The accused however caused the deceased to lose his life.They claim that they were both drunk to the point of being insane. This defence was raised at trial, and I considered it in my judgment and rejected it for the reasons stated in the judgment. The murder of the deceased was a senseless act of bravado by the accused, and they deserve an appropriate and deterrent sentence.
I sentence each of the accused to thirty years imprisonment to run from the date of their arrest and detention.
It is so ordered.
Dated, signed and delivered at Nakuru this 10th day of October, 2014
M. J. ANYARA EMUKULE
JUDGE