[2017] KEHC 2019 (KLR)
Although the law prescribes a mandatory death sentence for murder under section 204 of the Penal Code, the court found that not all murder cases are alike and that judicial discretion should be exercised in sentencing. The court considered the accused's remorse, his personal circumstances, the fact that the deceased...
Source-derived case information.
- Citation
- [2017] KEHC 2019 (KLR)
- Parties
- Applicant: Republic; Defendant: Edward Nyarunda Ratemo
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 5 of 2015
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Accused sentenced to 25 years imprisonment for murder.
- Judges
- SJ Chitembwe
- Legal Topics
- Murder, Sentencing Discretion, Mandatory Sentences, Mitigation, Death Penalty, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Edward Nyarunda Ratemo
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the mandatory death sentence should be imposed for the offence of murder in the circumstances of this case.
- 2 Whether judicial discretion should be exercised in sentencing for murder.
- 3 What is the appropriate sentence for the accused given the mitigation and circumstances.
Ratio Decidendi
Although the law prescribes a mandatory death sentence for murder under section 204 of the Penal Code, the court found that not all murder cases are alike and that judicial discretion should be exercised in sentencing. The court considered the accused's remorse, his personal circumstances, the fact that the deceased and accused were friends and workmates, and the period already spent in custody. The court concluded that the death penalty would not serve any purpose in this case and instead imposed a sentence of 25 years imprisonment, holding that some murder cases may not call for the death sentence.
Court Disposition
Accused sentenced to 25 years imprisonment for murder.
Orders
- The accused is sentenced to 25 years imprisonment.
- Right of appeal explained.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL CASE NO.5 OF 2015
REPUBLIC ……………………………………PROSECUTOR
VRS
EDWARD NYARUNDA RATEMO…………………ACCUSED
09. 11. 2017
Before Hon Justice Chitembwe – Judge
Prosecutor Mr. Mwangangi for state
Court Assistant – Mr. Kashane
Accused present
Interpretation English/Kiswahili
Miss Muna for accused
Miss Muna:
On behalf of the accused, he is very remorseful. He has a wife and two children below seven years. Even if the offence attracts mandatory sentence, I pray that he be given another sentence.
Mr. Mwangangi:
The deceased was also a father. He had a wife and children. He was an uncle and a potential grandfather. We are seeking the mandatory death sentence.
Court:
I have read the report of the Probation Officer’s report. The deceased and the accused were friends. The accused had miraa on the very day and shared it out with the deceased. I wish to acknowledge the useful information in the Probation officer’s report which did not come out during the hearing. This include the fact that the accused went on a drinking spree the previous day before he reported to work. He was sober when he committed the offence and the information that he had gone back to his house without permission and the deceased had booked him for disciplinary action.
The punishment for murder is death under section 204 of the Penal Code. The presumption is that anyone who kills is not capable of being reformed and has to be eliminated from the society. That sentence is more in line with the idea of an eye for an eye. I do appreciate that the death sentence is lawful. It is also recognized in the Constitution. I do support the existance of the death Sentence as at time certain circumstance call for its imposition. My view is that the Judicial Officers should have the discretion as to when such a sentence should be imposed. Shutting out the door of discretion is not proper. It is the Court which is best placed to know when to impose the death Penalty.
In this particular case, I do find that the death penalty will not serve any purpose. The death was the accused’s workmate and they were friends. Not all murder incidents are the same, it can be held that murder is committed even if the circumstances vary and should be punished by death.
However, some murder cases may not call for the death sentence.
Taking the mitigation into account and noting that the accused is 37 years old and was a Prison Warder and taking into account the period of about two years has been in custody, the accused is hereby sentenced to 25 (twenty five) years imprisonment. Right of appeal.
Dated, Signed and Delivered at Marsabit this 9th day of November 2017
SAID CHITEMBWE
JUDGE