[2011] KEHC 1059 (KLR)
The court found that the mandatory death sentence for murder under Section 204 of the Penal Code is inconsistent with the right to life as guaranteed by Article 26(1) of the Constitution, since Article 26(3) does not expressly authorize intentional deprivation of life. The court exercised sentencing discretion,...
Source-derived case information.
- Citation
- [2011] KEHC 1059 (KLR)
- Parties
- Applicant: Republic; Defendant: Vincent Kipkurui Koech; Defendant: Dennis Kipchirchir Koech
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 16 of 2010
- Procedural Posture
- Criminal Case / Sentencing
- Outcome
- Each accused sentenced to 50 years imprisonment with no option of parole for the first 30 years.
- Judges
- MJA Emukule
- Legal Topics
- Murder Sentencing, Right to Life, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Vincent Kipkurui Koech
Defendant
Dennis Kipchirchir Koech
Defendant
Procedural Posture
Criminal Case / Sentencing
Legal Issues
- 1 Whether the mandatory death sentence for murder under Section 204 of the Penal Code is consistent with the right to life under Article 26 of the Constitution.
- 2 What is the appropriate sentence for the accused persons convicted of murder given the circumstances of the case.
Ratio Decidendi
The court found that the mandatory death sentence for murder under Section 204 of the Penal Code is inconsistent with the right to life as guaranteed by Article 26(1) of the Constitution, since Article 26(3) does not expressly authorize intentional deprivation of life. The court exercised sentencing discretion, considering the circumstances of the offence, the lack of remorse by the accused, and the ongoing community tension. The court imposed a sentence of 50 years imprisonment for each accused, with no parole option for the first 30 years, departing from the statutory death penalty in favour of a custodial sentence that reflects both the gravity of the offence and constitutional...
Court Disposition
Each accused sentenced to 50 years imprisonment with no option of parole for the first 30 years.
Orders
- Each accused is sentenced to 50 years imprisonment.
- No option of parole for the first 30 years.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 16 OF 2010
REPUBLIC…………………………………………….....………………………………….PROSECUTOR
VERSUS
VINCENT KIPKURUI KOECH…………………………...........……………………………1ST ACCUSED
DENNIS KIPCHIRCHIR KOECH……………………….............…………………………2ND ACCUSED
SENTENCE
Section 204 of the Penal Code(Cap. 63, Laws of Kenya) provides that any person convicted of murder shall be sentenced to death.
In the case of REPUBLIC VS. JOHN KIMITA MWANIKI(Nakuru Criminal Case No. 116 of 2007)I argued that Article 26(3) of the Constitution is inconsistent with Article 26(1) of the Constitution which guarantees the right to life.
Looking again at Article 26(3) of the Constitution, it is quite clear that it does not in any of its subsequent provisions authorize the taking away of life intentionally. For that reason, I gave a sentence of 30 years, without an option of parole for the first 20 years.
The accused in that case was part of a gang of raiders. He was young and may well have been influenced by his peers who were never caught. In this case the accused acted in concert with their brother Kiprono who was subject of mob rule and was killed in revenge attacks. It was the quick action of the Police, that saved the accused from suffering a similar fate. It is only a year after the events in question. The anger and tension is still there, particularly among the relatives of the victim of their vicious attack and slaying.
It was quite senseless attack, and the accused were not remorseful at all, even after their conviction, they still denied involvement in death of the deceased, Kelvin Kibiwott Ngetich.
For those reasons, I would sentence each of the accused to 50 years imprisonment with no option of parole for the first 30 years.
There shall be orders accordingly.
Dated, delivered and signed at Nakuru 24th day of June, 2011
M. J. ANYARA EMUKULE
JUDGE