[2013] KEHC 1598 (KLR)
The court held that, following the Court of Appeal's decision declaring the mandatory death sentence for murder unconstitutional, sentencing for murder must be individualized and based on a range of factors, including the accused's social circumstances, potential for reform, and the views of the victim's family. The...
Source-derived case information.
- Citation
- [2013] KEHC 1598 (KLR)
- Parties
- Applicant: Republic; Defendant: Godfrey Ngotho Mutiso
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 55 of 2004
- Procedural Posture
- Criminal Case / Post Conviction, Pre Sentencing
- Outcome
- Directions issued for preparation of Social Enquiry Report before sentencing.
- Judges
- JV Juma
- Legal Topics
- Murder Sentencing, Constitutionality of Death Penalty, Social Enquiry Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Godfrey Ngotho Mutiso
Defendant
Procedural Posture
Criminal Case / Post Conviction, Pre Sentencing
Legal Issues
- 1 Whether the mandatory death sentence for murder is constitutional.
- 2 What factors should guide the court in determining the appropriate sentence for murder after the Court of Appeal decision.
- 3 Whether a Social Enquiry Report is necessary before sentencing.
Ratio Decidendi
The court held that, following the Court of Appeal's decision declaring the mandatory death sentence for murder unconstitutional, sentencing for murder must be individualized and based on a range of factors, including the accused's social circumstances, potential for reform, and the views of the victim's family. The court found it necessary to obtain a Social Enquiry Report to inform its sentencing decision, emphasizing that such a report would provide a comprehensive view of the offender's background, the circumstances of the offence, and the perspectives of relevant stakeholders. The court directed the probation department to prepare and file this report before proceeding to mitigation...
Court Disposition
Directions issued for preparation of Social Enquiry Report before sentencing.
Orders
- The probation department is directed to prepare and file a Social Enquiry Report by 18th November, 2013.
- Mention set for 29th October, 2013 for the State to canvass on the proposed sentence.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL CASE NO. 55 OF 2004
REPUBLIC………………………………………………..……..PROSECUTOR
VERSUS
GODFREY NGOTHO MUTISO………………………….…….ACCUSED
RULING
The accused GODFREY NGOTHO MUTISO has been convicted for the offence of murder. Before a sentence was imposed the matter went to the Court of Appeal which delivered a landmark decision in which the court found that the mandatory death sentence in murder cases was unconstitutional. As such a wide range of sentences are open for the offence of murder which will depend on a variety of factors which include
The social circumstances of the accused
Possibility of re-integration into society
Possibility of reform
Attitudes of the victims family
The state have indicated that they will not be pursuing the death penalty in this case. The death sentence however remains the maximum sentence for this offence. I do agree with Mr. Wameyo Advocate that the maximum sentence ought to be reserved for the worst possible manifestation of any offence.
I have noted that Hon. Justice J. B. Ojwang did on 18th October, 2010 give certain directions regarding the conduct of the sentencing phase of this trial. The state was to canvass arguments for whatever sentence they were proposing, thereafter Mr. Wameyo for accused was to make a response. The Hon. Judge (as he then was) also directed that certain documentation may need to be presented before the court such as
Victim Impact statement (if available).
Other relevant reports
I am of the opinion that a Social Enquiry Report not a Probation Report would be of assistance in guiding the court on the appropriate sentence to impose. I reiterate that what is being sought is a Social Enquiry Report and nota Probation Report (which would suggest that the court is considering placing the accused on probation). Such Social Enquiry Report should include the circumstances of the offence, the offender’s background, attitudes of the victim, interviews with prison authorities, attitude of offender, attitude of his society/village, etc. Once such a report is availed then mitigation maybe offered and the court will proceed to impose a sentence thus closing the trial. This court directs the probation department to prepare and file in court such a Social Enquiry Report on 18th November, 2013.
Read in open court this 28th day of October, 2013.
M. ODERO
JUDGE
In the presence of:
Mr. Jami for State
Ms. Kayata h/b Mr. Wameyo for Accused
Court Clerk Mutisya
Court:
Mention 29th October, 2013 for state to canvass on proposed sentence.
M. ODERO
JUDGE
28TH OCTOBER, 2013