[2016] KEHC 3997 (KLR)
The court found that there was no merit in the application for a 30-day stay of execution of the death sentence. The judge reasoned that all proceedings, including the judgment and rulings, had been typed and were ready for collection, so there was no risk of delay in filing the appeal due to unavailability of...
Source-derived case information.
- Citation
- [2016] KEHC 3997 (KLR)
- Parties
- Applicant: Republic; Respondent: Thomas Kipkemoi Kipkorir; Respondent: Joseph Komen Yatich; Respondent: Sebastian Yano Komen
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 29 of 2012
- Procedural Posture
- Criminal Case / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution denied
- Legal Topics
- Murder Conviction, Stay of Execution, Bail Pending Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Thomas Kipkemoi Kipkorir
Respondent
Joseph Komen Yatich
Respondent
Sebastian Yano Komen
Respondent
Procedural Posture
Criminal Case / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the death sentence for 30 days pending the filing of an appeal and application for bail pending appeal.
- 2 Whether the 14-day statutory period for filing an appeal is sufficient protection for the accused persons.
Ratio Decidendi
The court found that there was no merit in the application for a 30-day stay of execution of the death sentence. The judge reasoned that all proceedings, including the judgment and rulings, had been typed and were ready for collection, so there was no risk of delay in filing the appeal due to unavailability of documents. The established practice is that execution of a death sentence does not occur until all appeal avenues have been exhausted. Therefore, the statutory 14-day period for filing an appeal is adequate protection for the accused persons. The application for a 30-day stay was denied.
Court Disposition
application for stay of execution denied
Orders
- The application to stay execution of the death sentence for 30 days is denied.
Full Case Text
Judgment text and source record
23 paragraphs
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
RULING
Thomas Kipkemoi Kipkorir, Joseph Komen Yatich and Sebastian Yano Komen, the 1st accused person, 2nd accused person and 3rd accused person respectively, were jointly charged with the murder of Nicholas Ochieng Odongo on the night of 30th March 2012 at Kwitu Classical Bar in Eastleigh Section III within Nairobi County. They were tried and found guilty of the murder in a judgement delivered by this court on 21st July 2016. The accused persons opted not to mitigate before sentence and on 27th July 2016 this court sentence each of them to death.
Mr. Nyangito for the 1st accused made an oral application seeking stay of execution of the sentence for 30 days in respect of the 1st accused person pending the filing of appeal. Ms Celine Odembo for the 2nd accused and Mr. Koech for the 3rd accused associated themselves with that application. My understanding is that all the accused persons are seeking stay of execution of the death sentence pending the filing of the intended appeal as well as the application for bail pending the appeal. Mr. Nyangito told the court that execution of the sentence could be carried out at any time after the sentence has been pronounced and this may prejudice the appeal.
The application was opposed by Ms Macharia, the prosecution counsel, who submitted that there are 14 days within which to appeal or file any application for bail pending appeal and therefore there is no justification in asking for more days. She submitted that an application for extension of time can be filed in the event that the allocated 14 days expire before this is done.
I have considered this application. I find no merit in it. All the proceedings including the judgement and rulings have been typed and copies of the same are ready for collection and therefore no one can claim they are unable to act due to delay in acquiring the typed proceedings and therefore they may delay the filing of the appeal. The practice has been that no execution can be carried out until a party has exhausted all the appeal channels. For this reason, it is my view that 14 days reserved for appeal are adequate. The parties must move with speed now that the proceedings have been typed and prepare their appeal papers for filing to the superior court. The application to stay the execution for 30 days is hereby denied. Orders shall issue accordingly.
Dated, signed and delivered in open court this 28th day of July 2016
S. N. Mutuku
Judge
In the presence of:
Ms Macharia for the prosecution
Mr. Nyangito for the 1st accused
Ms Celine Odembo for 2nd accused
Mr. Koech for 3rd accused
The three accused persons
Mr. Daniel Ngumbi, court clerk