[2024] KEHC 7296 (KLR)
The court held that, following the Supreme Court's decision in the Muruatetu case, the mandatory death sentence for murder is unconstitutional and trial courts have discretion to impose an appropriate sentence after considering mitigation and the circumstances of the case. The court considered the accused's...
Source-derived case information.
- Citation
- [2024] KEHC 7296 (KLR)
- Parties
- Applicant: Republic; Respondent: Colins Otieno Ojwang
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 31 of 2015
- Procedural Posture
- Criminal Case / Resentencing After Appeal
- Outcome
- Death sentence set aside; accused resentenced to 35 years' imprisonment from date of arrest.
- Judges
- RE Aburili
- Legal Topics
- Murder Sentencing, Resentencing Guidelines, Mitigation Factors, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Colins Otieno Ojwang
Respondent
Procedural Posture
Criminal Case / Resentencing After Appeal
Legal Issues
- 1 Whether the mandatory death sentence for murder should be imposed or whether the court should exercise discretion in resentencing upon mitigation.
- 2 What sentence is appropriate in light of the accused's mitigation, circumstances of the offence, and recent jurisprudence.
Ratio Decidendi
The court held that, following the Supreme Court's decision in the Muruatetu case, the mandatory death sentence for murder is unconstitutional and trial courts have discretion to impose an appropriate sentence after considering mitigation and the circumstances of the case. The court considered the accused's mitigation, including his age, time spent in custody, remorse, reformation, and status as a first offender, as well as the gravity and circumstances of the offence. Balancing these factors, the court found that a custodial sentence of thirty-five years' imprisonment, calculated from the date of arrest, was just and proportionate. The death sentence was set aside and substituted...
Court Disposition
Death sentence set aside; accused resentenced to 35 years' imprisonment from date of arrest.
Orders
- The convict Collins Otieno Ojwang is sentenced to thirty-five (35) years' imprisonment from 27th May 2015.
- Fresh warrant of commitment to prison to issue.
Full Case Text
Judgment text and source record
30 paragraphs
Republic v Ojwang (Criminal Case 31 of 2015) [2024] KEHC 7296 (KLR) (12 June 2024) (Resentence)
Neutral citation: [2024] KEHC 7296 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Case 31 of 2015
RE Aburili, J
June 12, 2024
Between
Republic
Prosecutor
and
Colins Otieno Ojwang
Accused
Resentence
1. The accused person Collins Otieno Ojwang was convicted and sentenced to death for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code on 31st May 2017 by E. N. Maina J.
2. He appealed to the Court of Appeal vide Court of Appel Criminal Appeal No. 121 of 2017 and in a judgment rendered on 9th February 2024, the learned Judges Kiage, F. Tuiyot and J. Ngugi JJA dismissed his appeal against conviction, upholding the High Court’s conviction of the Appellant.
3. On sentence, the Court of Appeal directed that matter to be remitted to the High Court to hear mitigation for resentencing.
4. The accused appeared on 25th May 2024 with his counsel and mitigated.
5. Mr. Onsongo counsel representing him submitted on documents filed by the accused convict praying for leniency because the accused had acquired life skills while in prison, he was 37 years old. He is from a poverty-stricken family, he is the 4th born, only his father is alive, he has been in custody since 2017, he regrets the circumstances leading to the offence which was a dispute over burial site of a relative. Harsh punishment cannot bring back life lost and prayed for custodial sentence.
6. In his own words, the convict stated how he did not like what happened and he regretted, pleading for a second chance so that he can teach others not to commit offences.
7. That he was trained as a preacher as shown by certificates in religion studies hence he is reformed and he has known God unlike before. He prayed for leniency.
8. On behalf of the state, the Prosecution counsel Mr. Marete urged the court to re-impose death sentence which is lawful and the deceased met his death when undertaking his social responsibilities and that training in prison was not enough. That the deceased left behind dependants who should be considered.
9. I have considered all the mitigation and submissions by the state prosecutor.
10. I have also considered the circumstances under which the murder most foul was committed without any provocation and the accused’s defence of alibi which was dismissed by the court of appeal.
11. I have also considered the concession by the prosecution counsel on appeal, Mr. Okango that the recent jurisprudence, following the Francis Muruatetu case is that trial courts have discretion in sentencing in murder cases, upon hearing the mitigations and circumstances of each case.
12. I have considered the guidelines in resentencing as espoused in the Muruatetu case and the objects and purpose of sentencing, the fact that the convict is a first offender and the age of the accused convict and his mitigation; and period spent in custody.
13. I exercise discretion and resentence the convict herein Collins Otieno Ojwang to serve thirty five (35) years imprisonment to be calculated from date of arrest on 27th May 2015.
14. Fresh warrant of commitment to prison to issue.
15. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2024R. E. ABURILIJUDGE