[2023] KEHC 23407 (KLR)
Although the law prescribes a mandatory death sentence for murder, the Supreme Court has held that such mandatory sentences are unconstitutional, requiring courts to exercise discretion and consider mitigating factors. In this case, the court considered the premeditated nature of the killing, the convicts' actions...
Source-derived case information.
- Citation
- [2023] KEHC 23407 (KLR)
- Parties
- Applicant: Republic; Defendant: Sabina Odhiambo Oyosa; Defendant: Geoffrey Ouma
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E002 of 2022
- Procedural Posture
- Criminal Case / Sentencing Ruling After Conviction for Murder
- Outcome
- Both convicts sentenced to 25 years imprisonment for murder, effective from the date of conviction. Right of appeal within 14 days.
- Judges
- WM Musyoka
- Legal Topics
- Murder, Sentencing Principles, Mandatory Sentences, Judicial Discretion, Penal Code, Pre Sentence Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Sabina Odhiambo Oyosa
Defendant
Geoffrey Ouma
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling After Conviction for Murder
Legal Issues
- 1 Whether the mandatory death sentence for murder should be imposed in light of the Supreme Court decision declaring such sentences unconstitutional.
- 2 What is the appropriate sentence for the convicts given the circumstances of the offence and the mitigation presented.
Ratio Decidendi
Although the law prescribes a mandatory death sentence for murder, the Supreme Court has held that such mandatory sentences are unconstitutional, requiring courts to exercise discretion and consider mitigating factors. In this case, the court considered the premeditated nature of the killing, the convicts' actions in seeking out and attacking the deceased, and the sanctity of human life. Despite favourable pre-sentence reports and pleas for leniency, the court found that a non-custodial sentence would not be appropriate for such a serious offence. The court balanced the mitigating factors, including the convicts' family circumstances and lack of prior criminal records, against the gravity...
Court Disposition
Both convicts sentenced to 25 years imprisonment for murder, effective from the date of conviction. Right of appeal within 14 days.
Orders
- The convicts are sentenced to serve 25 years imprisonment each, effective from July 28, 2023.
- Right of appeal to the Court of Appeal within 14 days.
Full Case Text
Judgment text and source record
25 paragraphs
Republic v Oyosa & another (Criminal Case E002 of 2022) [2023] KEHC 23407 (KLR) (13 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23407 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Case E002 of 2022
WM Musyoka, J
October 13, 2023
Between
Republic
Prosecution
and
Sabina Odhiambo Oyosa
1st Accused
Geoffrey Ouma
2nd Accused
Ruling
1. The accused persons herein were convicted on July 28, 2023, of the murder of their blood brother, Collins Owino Oyosa, on January 13, 2022. They are now convicts. I am called upon to sentence them for that offence that they were found guilty of committing. I will consider the penalties available in law for such offences, the circumstances of the commission of the offence, the feelings of the family of the victim and the antecedents of the accused persons.
2. The penalty prescribed by the law for murder is mandatory death. That is what is in the Kenyan statutes. However, the Supreme Court recently ruled that mandatory sentences were unconstitutional, and directed that trial courts ought to be given room to consider the matters that I have set out in paragraph 1 above, to assess whether to award the death penalty prescribed or some other lesser sentence.
3. Murder is where death is caused intentionally. Then there is manslaughter, where death is caused unintentionally or by accident or mistake. As stated above, the penalty for murder, according to section 204 of the Penal Code, Cap 63, Laws of Kenya, is death; while that for manslaughter is a maximum of life imprisonment, by virtue of section 205 of the Penal Code. The Supreme Court decision has, no doubt, thrown everything into a spin. There is no clarity at all, when it comes to assessing the appropriate sentence to impose for both manslaughter and murder. It is an open field and, in terms of sentence, it would now appear that there is no difference between murder and manslaughter. The line has been blurred.
4. I called for pre-sentence reports. The probation office has compiled the reports, one is dated September 15, 2023 and the other October 3, 2023, both were filed herein on 3rd October 2023. They are generally favourable. The 1st convict is not remorseful, according to that report, for she still denies her complicity. The position of the 2nd convict is unclear. The mother of the convicts and the deceased prays for leniency, saying that the murder robbed her of a son, and custodial sentences would take away her other 2 children. The probation office recommends non-custodial sentences. The deceased is depicted, by the community, in both reports, as having been an undesirable character.
5. The convicts were convicted of murder, a pre-meditated killing. The evidence that was placed before the court was that of individuals who set out in search of the deceased, having suspected him of committing theft of a bicycle. They went to his home, flushed him out, and set upon him with weapons. This is about the killing of a human being. Human life is sacred and ought not to be terminated unlawfully like happened in this case, even where the victim is considered undesirable in society. Human society is very protective of its own. Senseless killing, such as in this case, should be dealt with the firmness it deserves, to send out a message about the importance to uphold sanctity of human life. A person who kills intentionally should pay back for his wrongdoing. A non-custodial sentence would not suffice.
6. If the deceased had committed a crime or had offended, as claimed by the convicts, the proper thing should have been to report the matter to the police, and to leave it to them to investigate, gather evidence and prosecute him. The convicts took the law into their own hands, with tragic consequences.
7. I have noted the circumstances of the commission of the offence, the statements made by the Advocate for the convicts in mitigation, and the 2 pre-sentence reports. I have also noted the antecedents of both convicts, especially the fact that the 1st convict has young children. I have taken all these into account, balancing them against the fact that a human being lost his life. I am also alive to the fact that it was the convicts who went out looking for the deceased, and attacked him.
8. In the circumstances, I shall sentence the convicts to serve a custodial sentence, of 25 years imprisonment, effective from the date of conviction on July 28, 2023. There is a right of appeal to the Court of Appeal within 14 days. Orders accordingly.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 13TH DAY OF OCTOBER 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMs. Chepkonga, instructed by the Director of Public Prosecutions, for the Republic.Mr. Ouma, Advocate for the accused/convicts.