[2012] KEHC 1242 (KLR)
The court found that the mandatory death penalty for murder, as provided under Section 204 of the Penal Code, is inconsistent with the Constitution's protection of the right to life. The court concurred with the Court of Appeal in GODFREY NGOTHO MUTISO VS REPUBLIC (2010) eKLR, holding that the death penalty is an...
Source-derived case information.
- Citation
- [2012] KEHC 1242 (KLR)
- Parties
- Respondent: Republic; Defendant: Patrick Lumonje Obote
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 32 of 2007
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- convicted and sentenced
- Legal Topics
- Murder Sentencing, Death Penalty, Mitigation, Constitutional Right to Life
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Patrick Lumonje Obote
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the mandatory death penalty for murder is constitutional in light of the right to life.
- 2 Whether the court has discretion to impose a sentence other than death for murder under Section 204 of the Penal Code.
- 3 What sentence is appropriate given the accused's mitigation and time spent in remand.
Ratio Decidendi
The court found that the mandatory death penalty for murder, as provided under Section 204 of the Penal Code, is inconsistent with the Constitution's protection of the right to life. The court concurred with the Court of Appeal in GODFREY NGOTHO MUTISO VS REPUBLIC (2010) eKLR, holding that the death penalty is an archaic and ultimate denial of human rights, and that sentencing discretion must be exercised in light of constitutional values and the circumstances of the offender. Considering the accused's status as a first offender, the years spent in remand, and the mitigation advanced, the court determined that the maximum sentence of death was not merited and instead imposed a custodial...
Court Disposition
convicted and sentenced
Orders
- The accused is sentenced to serve a term of fifteen (15) years imprisonment.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
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REPUBLIC.................................................................................................PROSECUTOR
VERSUS
PATRICK LUMONJE OBOTE...........................................................................ACCUSED
SENTENCE
The Accused has been found guilty for the offence of murder and has been convicted.
The only remaining issue is that of sentencing.
Section 204 of the Penal Code provides for the death penalty for any person convicted of murder. The Section reads as follows;
“......Any person convicted of murder shall be sentenced to death......”
Counsel for the Accused submitted in mitigation that this court is vested with discretion to pass any other sentence apart from the mandatory sentence.
Counsel urged the court to take into consideration the age of the Accused and the number of years spent in remand and urged the court to give the Accused a chance to reform. Counsel referred the court to the case of GODFREY NGOTHO MUTISO CR. APP.NO. 17 OF 2008 in support of his submissions on mitigation.
The State in response submitted that even though the Accused was a 1st offender the court should impose the maximum sentence provided in law so that it may act as a deterrent to others.
After hearing the submissions of both Counsel and after having perused the case referred to by Counsel for the Accused GODFREY NGOTHO MUTISO VS REPUBLIC (2010) eKLR.This court is persuaded that the death penalty which is the only sentence provided for the offence of murder, goes against the letter and spirit of the Constitution.
This court holds the opinion that the death penalty is the ultimate denial of a human right and violates the fundamental right to life.
This court has perused the Court of Appeal decision at length and concurs that only a handful of inmates have been executed since independence and that our prisons in Kenya are inundated with a huge number of inmates on death row.
This court in handing out the death sentence to the Accused will only be adding to these swelling number of inmates and to the numbers who suffer the “death row syndrome”
The death penalty is also an archaic sentence in a changing, evolving and modern society.
For those reasons and taking into consideration the circumstances of this case and the mitigation made by Counsel that he be treated as a 1st offender and the time spent incarcerated in remand. This court is persuaded that the Accused does not merit the maximum sentence imposed by the law, which is death.
The Accused is hereby sentenced to serve a term fifteen (15) years.
It is so ordered.
Dated and delivered at Eldoret this 1st day of November 2012.
A.MSHILA
JUDGE
Coram: Before Hon. A.Mshila J
CC: Andrew
Counsel for the Accused: Mokua holding brief for Chepkwony
Counsel for the State:. Wainaina.
A.MSHILA
JUDGE