[2011] KEHC 2274 (KLR)
The court, guided by the Court of Appeal's decision in Godfrey Ngotho Mutiso v Republic, held that the mandatory death sentence for murder under Section 204 of the Penal Code is unconstitutional to the extent that it does not allow for judicial discretion in sentencing. Considering the circumstances of the case, the...
Source-derived case information.
- Citation
- [2011] KEHC 2274 (KLR)
- Parties
- Applicant: Republic; Defendant: Jackline Atieno Awuor
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Murder Case 28 of 2008
- Procedural Posture
- Murder Case / Sentencing Ruling
- Outcome
- Accused sentenced to seven years' imprisonment, with four years already served in custody to be deducted, leaving three years to serve.
- Judges
- A Ali-Aroni
- Legal Topics
- Murder, Sentencing, Mandatory Death Penalty, Mitigation, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Jackline Atieno Awuor
Defendant
Procedural Posture
Murder Case / Sentencing Ruling
Legal Issues
- 1 Whether the mandatory death sentence for murder under Section 204 of the Penal Code is constitutional.
- 2 Whether the accused should be sentenced to death or a lesser sentence in light of mitigation and time spent in custody.
Ratio Decidendi
The court, guided by the Court of Appeal's decision in Godfrey Ngotho Mutiso v Republic, held that the mandatory death sentence for murder under Section 204 of the Penal Code is unconstitutional to the extent that it does not allow for judicial discretion in sentencing. Considering the circumstances of the case, the mitigation advanced on behalf of the accused, and the period already spent in custody, the court found that a lesser sentence than death was appropriate. The accused was therefore sentenced to seven years' imprisonment, with credit given for four years already served in custody, resulting in a remainder of three years to be served.
Court Disposition
Accused sentenced to seven years' imprisonment, with four years already served in custody to be deducted, leaving three years to serve.
Orders
- The accused is sentenced to seven years' imprisonment.
- The period of four years already spent in custody shall be deducted from the sentence.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MURDER CASE NO.28 OF 2008
REPUBLIC.................................................................................PROSECUTOR
-VERSUS-
JACKLINE ATIENO AWUOR............................................................ACCUSED
RULING ON SENTENCE
The accused person was charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. Section 204 provides:-
“Any person convicted of murder shall be sentence to death”
The defence counsel mitigated to arrest the death sentence under the provisions of Section 324 of the Penal Code. The Court of Appeal on the other hand in the case of Godfrey Ngotho Mutiso vs Republic –Criminal Appeal Case 17 of 2008 had this to say of the death sentence under Section 204.
“On our own assessment of the issue at hand and the material placed before us, we are persuaded, and now so hold, that Section 204 of the Penal Code which provides for a mandatory death sentence is antithetical to the constitutional provisions on protection against in human and degrading punishment on treatment and fair trial. We not that while the Constitution itself recognizes the death penalty as being lawful, it does not say anywhere that when a condition for murder is recorded, only the death sentence shall be imposed. We declare that Section 204 shall, to the extent that it provides that the death penalty is the only sentence in respect of the crime of murder, is inconsistent with the letter and spirit of the Constitution which as we have said, makes no such mandatory provision.”
Guided by the above authority, the circumstances and facts of the case and the mitigation on behalf of the accused, although committed a heinous act against her on flesh and blood I find that the accused deserves a lesser sentence and I will therefore not commit her to the death sentence. I sentence her to seven years. In computing the 7 years, I will consider the 4 years spent in custody. She will therefore serve the remainder of the 7 years which is 3 years.
DATED AND DELIVERED THIS 24TH DAY OF JUNE, 2011.
ALI-ARONI
JUDGE
In the presence of:
………………………………………………………………..………… for State
………………………………….……….. Accused person present