[2023] KEHC 23789 (KLR)

Republic v Owiti & 2 others (Criminal Case 45 of 2013) [2023] KEHC 23789 (KLR) (16 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23789 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 45 of 2013

RE Aburili, J

October 16, 2023

Between

Republic

Prosecutor

and

Nicholas Owiti

1st Accused

Elisha Ousa

2nd Accused

Dennis Omondi

3rd Accused

Judgment

1. The three accused persons herein Nicholas Owiti, Elish Ousa and Dennis Omondi were convicted of the offence of the murder of Francis Ojowi Oudu (deceased) who died on 6th May 2012.

2. They were sentenced to death on 27th November 2017 by Majanja J. They appealed to the Court of Appeal vide Kisumu Court of Appeal Criminal Appeal No. 94 of 2018 which appeal was heard on merit and vide judgment rendered on 16th December 2022, the learned Judge of Appeal, Asike-Makhandia, P. O. Kiage and F. Tuiyot JJA dismissed the appeal against conviction.

3. The Court of Appeal Judges however allowed the appeal on sentence but remitted the file back to the High Court for resentencing.

4. The file was then placed before me on 18th September 2023 on the first day of term after the recess and as only the prosecution counsel was present, I directed the Registry to serve the accused persons in prison through Prison Authorities and the defence counsel to appear for resentencing hearing on 9th October 2023.

5. On the 9th October 2023, I heard the defence and the prosecution counsel orally on resentencing with the accused convict’s counsel relying on Francis Muruatetu vs Republic [2017] eKLR and submitting that the accused had been in prison since 2013, that they were on bond pending trial, that they had learnt life skills in prison, they regret committing the offence and were now ready for reintegration.

6. That the court should consider the time spent in prison was enough punishment.

7. The 1st accused submitted that he has four certificates which he has acquired in prison, that he has undergone Biblical studies and changed his behaviour and life hence the court should consider letting him go home and meet his children. That he had repented and is serving God because he caused loss of a life and is 48 years old.

8. The 2nd accused prayed for leniency and forgiveness saying he had reformed and will be a good person if released. He is 39 years old and had been in prison for 7 years now.

9. The 3rd accused submitted that what he did was wrong. That he was drunk and prayed for leniency and forgiveness because he had reformed and trained in Biblical Studies. He is serving life imprisonment following commutation of death sentence. He is 39 years old.

10. Mr. Onanda Senior Principal Prosecution Counsel only urged the court to call for Probation Officer’s report to consider sentiments of the family of the deceased.

11. I have considered the mitigation by the accused persons. From the evidence adduced, the deceased was assaulted by a mob of people, including the three accused persons on the night of 6th May 2012 on allegations that he was a thief. The assailants, the 1st accused held the deceased, the 2nd accused had a panga while the 3rd accused had a stick and a rungu which they all used to assault the deceased with. The fourth person who was in their company who was at large during the trial had petrol which he poured on the deceased then the 1st accused set the deceased ablaze using a match stick which he had.

12. From the evidence on record, the 3 accused persons were local fishermen and were all positively identified as the deceased’s assailants and more so, PW 1 the deceased’s wife saw them commit the offence.

13. The accused persons gave defences of alibi which both the High Court and the Court of Appeal found not merited hence their conviction. They are now here, having exhausted their right of appeal, seeking for resentencing and pleading for leniency saying they are reformed and are remorseful for what they did.

14. The deceased died a painful death. He was hacked to death and his body set ablaze. His family no doubt lost a breadwinner, a father, son and husband. The accused put up a spirited defence and appeal despite committing the heinous offence and the Postmortem Report as summarized by the Court of Appeal on page 1 of its judgment is clear that the deceased sustained burns on both hands, right side of his abdomen and below the neck. He had a dent on the right eye and a cut wound on the head. Dr. M. O. Gone concluded that the cause of death was due to the multiple injuries sustained by the deceased due to assault.

15. In their mitigation before this court during the trial after they were found guilty of the murder of the deceased and convicted, the accused mitigated with the 1st accused stating that he was remorseful and sought for lenient sentence. The 2nd accused too stated that he was remorseful and prayed for leniency. The 3rd accused stated the same, through their then counsel Mr. Ochuka. This was on 11th December 2017.

16. In his sentencing remarks, learned Judge stated as follows:-“…I have heard the plea for leniency but the law does not permit me to carry discretion in the mater. I therefore sentence Nicholas Owiti, Elisha Ousa and Dennis Omondi to death in accordance with the law.”

17. The trial Judge was right in his sentencing remarks because Section 204 of the Penal Code does not provide any other alternative punishment for the offence of murder contrary to Section 203 of the Penal Code, upon conviction.

18. However, no sooner had the trial Judge pronounced that lawful death sentence which indeed, is not outlawed and neither is it unconstitutional as severally alleged by convicts and petitioners for resentencing, than the Supreme Court of Kenya delivered a landmark Judgment in the same month of December 2017 in the case of Francis Karioko Muruatetu & Another vs Republic Supreme Court Petition Nos. 15 and 16 of 2015 [2017] eKLR which decision has become a game changer in sentencing.

19. The Supreme Court in its decision rendered on 14th December 2017 just two days after the accused persons herein were sentenced to death in this case held that Mandatory Death sentence imposed on the Petitioners was unconstitutional to the extent that it deprived the trial court of the discretion in sentencing having regard to the circumstances of each case and in addition, that in so far as it denied the convict the opportunity to mitigate.

20. The Supreme Court did not, for avoidance of doubt, declare death sentence to be unconstitutional but its Mandatory nature as stipulated in Section 204 of the Penal Code. This is because the Supreme Court was alive to the provisions of Article 26(3) of the Constitution which guarantees every person the right to life and not to be deprived of that life except by law allowed and under the Constitution.

21. The Supreme Court also laid down guidelines in the Muruatetu II case on 6th July 2021 on what trial courts should consider in resentencing, after it emerged that all courts including the Court of Appeal were applying the principles laid out in the Muruatetu I case to find and hold that all Mandatory Sentences including those stipulated in Robbery with violence cases and sexual offences cases, were unconstitutional.

22. In rehearing of sentence for the charge of murder, the Supreme Court directed that both aggravating and mitigating factors such as the following will guide the court:-a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the Victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social readaptation of the offender;j.Any other factor that the court considers relevant.

23. Where the appellant lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on resentencing.

24. The guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under Section 204 of the Penal Code before the decision in Muruatetu.

25. Applying the above guidelines to this case, the offenders herein are aged 49, 39, and 39 years respectively. They are first offenders as no past criminal records were produced by the prosecution. They have been in prison from 11th December 2017 and say that they have reformed after studying the Bible and acquired other life’s skills although no recommendation letters were written to court by the prison’s authorities to confirm the position. The offence was not in response to a gender based violence. The manner of killing the deceased was by use of crude lethal weapons, panga, stick and rungu and setting the deceased’s body ablaze and in the full view of PW 1 his wife, which must have traumatized her so much.

26. The offenders are remorseful right from date of sentencing albeit they denied committing the offence by putting up spirited alibi defence and appeals which were dismissed.

27. Having considered all the above circumstances under which the offence was committed against the deceased and mitigations as well as the Supreme Court’s guidelines in theFrancis Muruatetu (supra) case, I hereby exercise discretion and resentence each of the three accused persons herein Nicholas Owiti, Elisha Ousa and Dennis Omondi to serve twenty (20) years imprisonment to be calculated from 11th December 2017 the date of 1st sentencing as they were on bond pending trial.

28. Accordingly, the Mandatory death sentence imposed on each of the three accused persons herein Nicholas Owiti, Elisha Ousa and Dennis Omondi, as commuted to life imprisonment is hereby set aside and substituted with twenty (20) years imprisonment to be calculated from 11th December 2017.

29. I so order.

30. File closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 16THDAY OF OCTOBER, 2023R. E. ABURILIJUDGE