[2020] KEHC 3240 (KLR)
The court found that although the accused was a first offender and expressed remorse, the circumstances of the offence—namely, the cruel murder of a newborn—were aggravating. The Supreme Court's decision in Muruatetu rendered the mandatory death sentence unconstitutional, granting the court discretion in sentencing....
Source-derived case information.
- Citation
- [2020] KEHC 3240 (KLR)
- Parties
- Applicant: Republic; Defendant: Eliphes Munyua Omugo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 35 of 2018
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted and sentenced to imprisonment
- Judges
- REA Ougo
- Legal Topics
- Murder, Sentencing Principles, Mitigation, Mandatory Sentence, First Offender, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Eliphes Munyua Omugo
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the accused should be sentenced to death or a lesser sentence for the offence of murder.
- 2 Whether the accused's status as a first offender and mitigating factors warrant a non-custodial sentence.
Ratio Decidendi
The court found that although the accused was a first offender and expressed remorse, the circumstances of the offence—namely, the cruel murder of a newborn—were aggravating. The Supreme Court's decision in Muruatetu rendered the mandatory death sentence unconstitutional, granting the court discretion in sentencing. After weighing the mitigating factors, including the accused's youth, lack of prior convictions, and favourable probation report, against the gravity and cruelty of the offence, the court determined that a non-custodial sentence was inappropriate. Accordingly, the accused was sentenced to ten years' imprisonment, with the right of appeal within 14 days.
Court Disposition
convicted and sentenced to imprisonment
Orders
- The accused, Eliphes Munyua Omugo, is sentenced to ten years' imprisonment.
- The accused has a right of appeal within 14 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA ‘
IN THE HIGH COURT OF KENYA
AT KISII
CORAM:OUGO J
CRIMINAL CASE (MURDER) NO. 35 OF 2018
REPUBLIC...................................................................................................PROSECUTION
VERSUS
ELIPHES MUNYUA OMUGO............................................................................ACCUSED
SENTENCING
1. Eliphes Munyua Omugohas been convicted of the murder of Hazard Mimanga. The law provides that one who is found guilty of murder shall suffer death. However, the Supreme court in the case ofFrancis Karioko Muruatetu & Another vs R (2017) eKLR declared that the mandatory death sentence is unconstitutional.
2. The accused is a first offender as no records of a previous conviction was tendered before this court. The accused in mitigation states that he is remorseful he is 25 years old and is newly married. That he is a first offender and that he seeks reconciliation with the family of the complainant. He pleads with the court that he be given a non-custodial sentence. The probation report is favourable and recommends probation. The mother and grandfather of the deceased have sought compensation and asked the court to sentence the accused.
3. I have considered the circumstance of this case, a baby was born and was murdered in a manner that was cruel. In sentencing the accused, I have considered the sentencing principles. Though the accused is a first offender in my view he does not deserve a non-custodial sentence. I therefore sentence the accused Eliphes Munyua Omugo to ten years’ imprisonment. He has a right of appeal within 14 days.
Dated, signed and delivered at KISIIthis16th day of July 2020.
R.E. OUGO
JUDGE
In the presence of;
Accused in person
Mr. Mainga For the accused person
Mr. Otieno Senior Prosecution Counsel office of the DPP
Mr. Ogechi Evans Court Assistant