Kenya Judgment

High Court · High Court at Kajiado

Republic v Ibrahim Omulo Owenga [2017] KEHC 5775 (KLR)

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Professional case brief

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Source document

01

Holding and result

The court found that the accused, Ibrahim Omulo Owenga, intentionally inflicted fatal injuries on the deceased, Grace, without provocation or evidence of attack, as established by the prosecution's thirteen witnesses. The court considered the accused's lack of previous criminal record, his status as a first offender, and his expression of regret, as well as the pre-sentence report. However, the court held that the law, as prescribed by section 204 of the Penal Code and affirmed by the Court of Appeal in Joseph Njuguna Mwaura, mandates the death sentence for murder. The court concluded that, despite the mitigating factors, it was bound by statute and precedent to impose the mandatory death sentence upon conviction for murder under section 203 of the Penal Code.

Court disposition

convicted and sentenced to death

Orders

  • The accused, Ibrahim Omulo Owenga, is sentenced to death under section 204 of the Penal Code.
  • The right of appeal to the Court of Appeal within 14 days is explained.

02

Material facts

Parties

Republic

Applicant Counsel: Mr. Akula

Ibrahim Omulo Owenga

Defendant Counsel: Mr. Nyaata

03

Procedural history

  1. Posture

    Criminal Case / Sentencing and Verdict

04

Questions and positions

Legal issues

Party arguments

Applicant
The prosecution presented thirteen witnesses to establish that the accused, Ibrahim Omulo Owenga, intentionally inflicted fatal harm on the deceased, Grace, without provocation or evidence of attack. The prosecution emphasized the brutality of the act, the lack of assistance to the victim, and the accused's conduct after the incident. The prosecution submitted that the accused had no previous criminal record or relevant antecedents.
Respondent
The defence, through Mr. Nyaata, presented mitigation highlighting the accused's personal circumstances, lack of previous criminal record, status as a first offender, and expression of regret for the incident. The defence relied on the pre-sentence report and urged the court to consider these factors in sentencing.

05

Court’s reasoning

  1. 01

    Penal Code, sections 203 and 204

    The offence of murder is defined under section 203 of the Penal Code, and the penalty is prescribed under section 204, which mandates the death sentence upon conviction.

  2. 02

    Joseph Njuguna Mwaura Cr. Appeal No. 5 of 2008

    The Court of Appeal has affirmed that the death sentence is the lawful and mandatory sentence for murder under section 203 of the Penal Code.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the accused, Ibrahim Omulo Owenga, intentionally inflicted fatal injuries on the deceased, Grace, without provocation or evidence of attack, as established by the prosecution's thirteen witnesses. The court considered the accused's lack of previous criminal record, his status as a first offender, and his expression of regret, as well as the pre-sentence report. However, the court held that the law, as prescribed by section 204 of the Penal Code and affirmed by the Court of Appeal in Joseph Njuguna Mwaura, mandates the death sentence for murder. The court concluded that, despite the mitigating factors, it was bound by statute and precedent to impose the mandatory death sentence upon conviction for murder under section 203 of the Penal Code.

Obiter and limits

  • The motive for the killing was never made crystal clear throughout the entire trial and remains a secret in the accused's heart.
  • The court has taken into account the circumstances broadly alluded to in mitigation, including the accused's personal circumstances and regret for the incident.

Court disposition

convicted and sentenced to death

  • The accused, Ibrahim Omulo Owenga, is sentenced to death under section 204 of the Penal Code.
  • The right of appeal to the Court of Appeal within 14 days is explained.

Source and reliance status

High Court

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Judgment text

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Source document

High Court

Judgment

[2017] KEHC 5775 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO. 15 OF 2015

REPUBLIC……………...………...…………………...……PROSECUTOR

Versus

IBRAHIM OMULO OWENGA….…...…….….............................ACCUSED

SENTENCING REMARKS AND VERDICT

This is a case where you Ibrahim Omulo Owenga appeared before this court charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.

The background of the offence as projected by the thirteen witnesses summoned by the prosecution to rally evidence against you constituted the following: that on the 19/6/2013 at Olosoit Sub-Location in Loitokitok Subdistrict you lived together with the deceased as husband and wife. This fateful day was just like any other normal day for you and the deceased Grace. You went about your daily chores. In the course of the day you decided that you would have to arm yourself with a panga which you used to inflict multiple grievious harm upon her with no evidence of attack or provocation. The members of the neighbourhood and the public who heard the commotion and domestic violence in your house rushed to the scene and pleaded with you to stop inflicting bodily harm to the deceased. Despite your assurance that did not deter you from continual beating which eventually brought her life to a cruel and fatal end. In the meantime and within hours of her death you left her and substantially did nothing to assist or seek help from a medical provider. You persisted in moving on with your life as if nothing had happened to Grace – the deceased. When the police and members of the public visited your house it was found to have been locked from outside and the body of Grace – deceased herein on top of the bed. This is the house you occupied two of you with the deceased. That action according to my finding in the main judgment was well planned and executed on 19/6/2013. The motive as to why a life of a young lady aged 28 years could be brought to a premature end was never made crystal clear throughout the entire trial. That remains a secret in your heart.

This court has heard the mitigation as presented my Mr. Nyaata learned counsel on your behalf. Mr. Akula, the senior prosecution counsel submitted that you have no previous record nor any antecedents relevant to this indictment. I also called for pre-sentence report from the probation officer. The report captured your family background, circumstances of the offence, personal life and history together with the victim statement.

I have taken into account the circumstances broadly alluded to in mitigation, your personal circumstances, the fact that you are a first offender and above all you regret the occurrence of this incident. The crux of the judgement is to consider all those including the provisions on penalty of murder as prescribed by parliament under section 204 of the Penal Code. In my application of the law on sentencing by virtue of a finding of guilty and conviction under section 203 of the Penal Code. The provisions of section 204 within which the category of punishment falls under to be imposed against you ought to be applied.

The law on this aspect has been restated by the Court of Appeal in the case of Joseph Njuguna Mwaura Cr. Appeal No. 5 of 2008 where the court affirmed that death sentence is a lawful sentence and mandatory sentence for the offence of murder contrary to section 203 of the Penal Code.

Bearing in mind all those various factors and the dicta in Joseph Njuguna Mwaura Case (Supra), the sentence I pass for the charge of murder which I found you guilty and convicted you is that of death. Accordingly I sentence you under the provisions of section 204 of the Penal Code to the mandatory death sentence. 14 days right of appeal explained to the Court of Appeal.

It is so ordered.

Dated, read and signed in open court at Kajiado on 16th day of March, 2017.

………………..

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Nyaata the defence counsel

Mr. Akula – senior prosecution counsel

Accused present

Mr. Mateli Court Assistant

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Joseph Njuguna Mwaura Cr. Appeal No. 5 of 2008

Case cited

Penal Code (Cap 63) sections 203, 204

Legislation

Legislation referenced in the available case record.

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