[2024] KEHC 6755 (KLR)
The court found that although the law prescribes death as the maximum penalty for murder, sentencing is discretionary and must consider the circumstances of the offence and mitigation. The accused's claim of intoxication was dismissed as an afterthought due to lack of evidence of mental impairment. The court noted...
Source-derived case information.
- Citation
- [2024] KEHC 6755 (KLR)
- Parties
- Applicant: Republic; Defendant: Simon Otieno Onyango alias Amiso
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E007 of 2022
- Procedural Posture
- Criminal Case / Sentencing Ruling After Conviction
- Outcome
- Accused sentenced to 25 years imprisonment from date of arrest.
- Judges
- RE Aburili
- Legal Topics
- Murder, Sentencing Discretion, Mitigation, Intoxication Defence
- 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
Simon Otieno Onyango alias Amiso
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling After Conviction
Legal Issues
- 1 Whether the accused should be sentenced to death or a lesser sentence for the offence of murder.
- 2 Whether intoxication is a valid mitigating factor in sentencing for murder.
Ratio Decidendi
The court found that although the law prescribes death as the maximum penalty for murder, sentencing is discretionary and must consider the circumstances of the offence and mitigation. The accused's claim of intoxication was dismissed as an afterthought due to lack of evidence of mental impairment. The court noted the accused is a first offender with no previous criminal record and considered his mitigation, including his age and family circumstances. Consequently, the court exercised its discretion to impose a custodial sentence of twenty-five years imprisonment, rather than the death penalty, with the sentence to run from the date of arrest.
Court Disposition
Accused sentenced to 25 years imprisonment from date of arrest.
Orders
- The accused Simon Otieno Onyango alias Amiso is sentenced to serve twenty-five (25) years in prison to be calculated from the date of arrest on 23rd February 2022.
- Right of appeal to the Court of Appeal within 14 days.
Full Case Text
Judgment text and source record
26 paragraphs
Republic v Onyango (Criminal Case E007 of 2022) [2024] KEHC 6755 (KLR) (5 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6755 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Case E007 of 2022
RE Aburili, J
June 5, 2024
Between
Republic
Prosecution
and
Simon Otieno Onyango alias Amiso
Accused
Ruling
1. The accused person is Simon Otieno Onyango alias Amiso. He has been convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. In his mitigation, he pleads for leniency as he has been in prison since his arrest and that he has learnt his lessons. Secondly that he was intoxicated at the material time hence he must have acted as a result of taking alcohol. He is 24 years old. He is a sand harvester. He is unmarried but supported his parents. That his father was involved in an accident. He is the elder son in his family. He pleaded for a lenient sentence in prison.
3. The prosecution submitted urging the court to impose death sentence which is lawful, having regard to the circumstances of the case.
4. I have considered all the mitigations and the submissions by the prosecution. I have considered the circumstances under which the offence was committed, leading to the demise of Phillip Kipkorir Kirong. The late ‘defence’ of intoxication is also considered as a mitigating factor.
5. However, from the injuries sustained by the deceased, the accused used a heavy object to hit him on the head and the reason for such vicious attack is unknown.
6. A person who is intoxicated cannot butcher another in that manner and as there was no evidence of mental impairment of the accused. I find the late defence of intoxication to be an afterthought and dismiss it.
7. Punishment for murder upon conviction is death, under Section 204 of the Penal Code. However, this is not mandatory penalty as the court retains the discretion in sentencing having regard to the circumstances of each case and the mitigation.
8. The accused is a first offender as the prosecution had no previous criminal records on him.
9. I exercise discretion and sentence the accused Simon Otieno Onyango alias Amiso to serve twenty-five (25) years in prison to be calculated from the date of arrest on 23rd February 2022.
10. Right of Appeal to the Court of Appeal is 14 days of today.
11. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 5TH DAY OF JUNE, 2024R. E. ABURILIJUDGE