[2016] KEHC 4025 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 29 OF 2012

REPUBLIC …………………………………………..PROSECUTOR

VERSUS

THOMAS KIPKEMOI KIPKORIR……………………..1ST ACCUSED

JOSEPH KOMEN YATICH……………………………2ND ACCUSED

SEBASTIAN YANO KOMEN…….…………………….3RD ACCUSED

SENTENCE

Thomas Kipkemoi Kipkorir, Joseph Komen Yatich and Sebastian Yano Komen, the 1st accused person, 2nd accused person and 3rd accused person respectively, are jointly charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the night of 30th March 2012 at Kwitu Classical Bar in Eastleigh Section III within Nairobi County they jointly murdered Nicholas Ochieng Odongo, the deceased. They denied committing this offence. They were tried and individually found guilty of the murder in a judgement delivered by this court on 21st July 2016. Mitigation before sentence was deferred until 26th July 2016.

When proceedings commenced for the court to receive mitigation, there was only Ms Celine Odembo, counsel for the 2nd accused person, present in court. Ms Odembo told the court that she had the brief of Mr. Nyangito counsel for the 1st accused person and that of Mr. Koech counsel for the 3rd accused person and that all the counsels did not wish to mitigate on behalf of their respective clients (the accused persons). This court asked the accused persons to confirm if that is the stand they also wished to take. Each of the accused persons told the court that they did not wish to mitigate before sentence.

Mitigation is part of the trial. Section 329 Criminal Procedure Codeprovides that:

“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”

It is a right that is accorded an accused person who has been convicted. It is exercised before the court pronounces the sentence and it is aimed at guiding or informing the court as to the proper sentence to be passed. By its very nature, section 329 Criminal Procedure Code seems to be allowing discretion on the part of the trial court. This may be the case in certain offences but is not practical in other offences like the capital offences whose penalties are couched in mandatory terms. Much debate has gone into this issue following the Godfrey Ngotho Mutiso v R [2010] eKLRwhen it seemed that this authority had introduced sentencing discretion in capital offences. However, in Joseph Njuguna Mwaura & 2 others v Republic [2013] eKLR the Court of Appeal was of the view that courts do not have jurisdiction in matters over which other arms of the government have been vested with the jurisdiction to act. That court held the Ngotho decision to be per incuriam in so far as it purported to grant discretion in sentencing with regard to capital offences. The Court ruled in part of that judgement thus:

“In our view, to say that there are other alternative sentences to the mandatory imposition or application of the death sentence is a pedantic and preposterous interpretation of the spirit and the letter of the Penal Code and the Constitution of Kenya, 2010. If the people of Kenya intended in their wisdom, and their collective will to outlaw the death sentence, then nothing could have been easier to do.”

In the matter before me, the accused persons have waved aside their right to mitigate. Even where mitigation is offered and received by the court, it does not play its intended role in informing the court of the proper sentence to pass in a murder trial just like in any other capital offence trial. The reason for this is obvious. There is only one sentence for murder and it is death as provided under section 204 Penal Code. This provision is couched in mandatory terms and it fetters this court from exercising any discretion in sentencing an accused person charged with and found guilty of murder.

Consequently, this court has no discretion in this matter and must be faithful to the law. I hereby sentences each of the accused persons, Thomas Kipkemoi Kipkorir, Joseph Komen Yatich and Sebastian Yano Komen, to death as by law provided. In compliance with section 25 (1) Penal Code, each accused person shall suffer death in the manner authorized by law. This court also informs the accused persons of their right of appeal within 14 days of this sentence. Orders shall issue accordingly.

Dated, signed and delivered in open court this 27th day of July 2016.

S. N. Mutuku

Judge

In the presence of:

Ms Macharia for the prosecution

Mr. Nyangito for 1st accused

Ms Celine Odembo for 2nd accused

Mr. Koech for 3rd accused

The three accused persons

Mr. Daniel Ngumbi, court clerk