[2021] KEHC 9379 (KLR)
The court found that although the Penal Code prescribes death for murder, the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR rendered the death penalty non-mandatory. Considering the accused's mitigation, his status as a first offender, the gravity of the offence, and the fact...
Source-derived case information.
- Citation
- [2021] KEHC 9379 (KLR)
- Parties
- Applicant: Republic; Defendant: Isaiah Otieno Okwiri
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 19 of 2018
- Procedural Posture
- Criminal Case / Sentencing Ruling After Conviction for Murder
- Outcome
- Accused sentenced to forty years imprisonment for murder, sentence to run from date of arrest, with right of appeal.
- Judges
- RE Aburili
- Legal Topics
- Murder, Sentencing, Mitigation, Penal Code Section 204
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Isaiah Otieno Okwiri
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling After Conviction for Murder
Legal Issues
- 1 Whether the accused should be sentenced to death or a term of imprisonment for the offence of murder.
- 2 Whether the period spent in remand custody should be considered in sentencing.
- 3 Whether the accused's mitigation and status as a first offender warrant a lesser sentence.
Ratio Decidendi
The court found that although the Penal Code prescribes death for murder, the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR rendered the death penalty non-mandatory. Considering the accused's mitigation, his status as a first offender, the gravity of the offence, and the fact that he absconded for six years before arrest, the court exercised its discretion to impose a custodial sentence of forty years imprisonment, to be calculated from the date of arrest and taking into account time already served in remand. The court emphasized that no one has the right to take another's life and that the punishment must reflect the seriousness of the offence while...
Court Disposition
Accused sentenced to forty years imprisonment for murder, sentence to run from date of arrest, with right of appeal.
Orders
- The accused Isaiah Otieno Okwiri is sentenced to serve forty (40) years imprisonment, calculated from the date of his arrest, taking into account the period already served in remand custody.
- Right of appeal is guaranteed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL CASE NO. 19 OF 2018[MURDER]
REPUBLIC.....................................................................................PROSECUTOR
VERSUS
ISAIAH OTIENO OKWIRI.................................................................ACCUSED
RULING ON SENTENCE
1. On 30. 11. 2020 this court delivered judgment and found the accused person herein Isaiah Otieno Okwiri guilty of murder as charged and convicted him accordingly. The court also called for a presentence report and mitigation before sentence. The Probation Officer, Rose Gwaro filed a presentence report dated 29. 12. 2020 and recommends that the accused is not fit for a non-custodial sentence. In addition, the Probation Officer calls for prison rehabilitation of the convict as a strategy to rehabilitate and reform him. The accused murdered the deceased in cold blood. He was accompanied by another person who was convicted and sentenced to death but his death sentence was commutted to life and on appeal to the Court of Appeal the life imprisonment was reduced to 30 years imprisonment.
2. I have heard the self-serving touchy mitigation by the accused and his advocate and the fact that the convict is a first offender. However, no one has a right to take away the life of another person. The deceased did not deserve to be unlawfully killed. Live and let live.
3. Punishment for Murder Under Section 204 of the Penal Code is death. However, as the death sentence is not mandatory, and considering that it has taken long for the accused to face justice since he ran away after murdering the deceased on 2. 5.2012 and was only arrested in 2018 six years after the offence, I hereby exercise discretion in the spirit of the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] e KLR and Sentence the accused person herein Isaiah Otieno Okwiri to serve Forty (40) years imprisonment to be calculated from the date of his arrest taking into account the period that he has already served in prison remand custody.
4. Right of Appeal guaranteed.
5. Orders accordingly.
Dated, Signed and Delivered at Siaya this 19th day of January, 2021
R.E. ABURILI
JUDGE
In the presence of:
Mr. Mirembe Advocate for the accused
Mr. Kakoi Principal Prosecution Counsel for State
CA: Modestar and Mboya