[2018] KEHC 3448 (KLR)
The court found that, given the gravity and inhumane nature of the murder, the lack of reconciliation with the victim's family, and the accused's prior conviction for a violent offence, a custodial sentence was warranted. The court considered the mitigation evidence but determined that the interests of justice and...
Source-derived case information.
- Citation
- [2018] KEHC 3448 (KLR)
- Parties
- Applicant: Republic; Defendant: Paul Otieno Ndejwe
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 105 of 2014
- Procedural Posture
- Criminal Case / Sentencing After Conviction and Resentencing Following Constitutional Petition
- Outcome
- accused sentenced to 40 years' imprisonment, sentence to run from date of original death sentence
- Judges
- AC Mrima
- Legal Topics
- Murder Sentencing, Resentencing After Petition, Death Penalty Review, Violent Offences, Pre Sentence Report, Victim Impact
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Paul Otieno Ndejwe
Defendant
Procedural Posture
Criminal Case / Sentencing After Conviction and Resentencing Following Constitutional Petition
Legal Issues
- 1 Whether the accused should receive a custodial sentence or a more lenient sentence after the death penalty was set aside.
- 2 What sentence is appropriate given the circumstances of the murder and the accused's criminal history.
- 3 Whether the interests of justice and the victim's family are served by the sentence imposed.
Ratio Decidendi
The court found that, given the gravity and inhumane nature of the murder, the lack of reconciliation with the victim's family, and the accused's prior conviction for a violent offence, a custodial sentence was warranted. The court considered the mitigation evidence but determined that the interests of justice and the need for deterrence outweighed the plea for leniency. The sentence of 40 years' imprisonment was deemed fair and proportionate, with the period to run from the date of the original death sentence, thereby recognizing time already served. The court emphasized the importance of allowing the victim's family time to heal and the necessity of a sentence that reflects the...
Court Disposition
accused sentenced to 40 years' imprisonment, sentence to run from date of original death sentence
Orders
- The accused is sentenced to 40 years' imprisonment.
- The sentence shall be deemed to run from the date the accused was sentenced to suffer death.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MIGORI
CRIMINAL CASE NO. 105 OF 2014
REPUBLIC.....................................................PROSECUTOR
-versus-
PAUL OTIENO NDEJWE....................................ACCUSED
SENTENCE
1. The accused person herein, Paul Otieno Ndejwe, was charged alongside a co-accused with the murder of one Dominic Osanbo Oginya(hereinafter referred to as ‘the deceased’). He denied the charge and a trial was conducted which culminated with a conviction. He was sentenced to suffer death.
2. The accused person thereafter petitioned the mandatory nature of the death sentence vide Migori High Court Constitutional Petition No. 2 of 2018 which Petition was allowed and the death sentence set-aside. This Court then conducted fresh sentencing proceedings culminating with this sentence.
3. Laying a basis for a lenient sentence the accused person availed two witnesses. They were David Owino Mbare (DW1) and Daniel Otieno Nyamula (DW2) who both described the accused person as a very humble and law-abiding citizen since childhood. DW1 was the accused person’s teacher who taught him sometimes in 1983 at Sony Complex Primary School. DW2 was in the same class with the accused person way back in 1984. Both lost contact with the accused person in school and hence could not attest to his life thereafter.
4. The prosecution submitted that the circumstances of the case called for a severe and deterrent sentence since the murder was carried out in such an inhumane manner and the family of the deceased is yet to go through the ordeal especially the son to the deceased who only survived by the grace of God. The prosecution further stated, and so admitted by the accused person, that the accused person was serving a 20 years’ imprisonment term resulting from a conviction on the offence of robbery of violence which was reduced to simple robbery by the Court of Appeal.
5. This Court called for a Pre-Sentence Report whose contents are duly noted. The judgment captured the unique circumstances of the case and the role played by the accused person as the leader of the gang. Whereas the accused person prayed for leniency on one hand, the family of the deceased on the other hand is yet to come to terms with the murder of the deceased which was undertaken by the accused person who is their neighbour and a clan member. Further, no reconciliation has since been initiated by the family of the accused person. Simply put, the matter has all along been left in the hands of the Court.
6. In balancing the interests of each side and the scales of justice this Court is of the considered view that a custodial sentence shall not only serve the interests of justice but also give more room to the family of the deceased to heal given that no reconciliation has since been attempted. Needless to say, the accused person has a criminal record on violence related offence.
7. It is on that background that this Court finds a sentence of 40 years’ imprisonment fair and so sentences the accused person accordingly. For avoidance of doubt, the sentence shall be deemed to run from the date the accused person was sentenced to suffer death.
8. Those are the orders of this Court.
DELIVERED, DATEDandSIGNED at MIGORI this 11th day of October 2018.
A. C. MRIMA
JUDGE
Ruling delivered in open Court and in the presence of: -
Paul Otieno Ndejwe,the Accused person.
Mr. Joseph Kimanthi, Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the State.
Evelyne Nyauke– Court Assistant.