[2022] KEHC 2728 (KLR)
Although the law prescribes death as the penalty for murder, the Supreme Court decision in Francis Muruatetu & Another v Republic grants courts discretion to impose a lesser sentence based on the circumstances and mitigation. The court found that the accused, despite being a young first offender and expressing...
Source-derived case information.
- Citation
- [2022] KEHC 2728 (KLR)
- Parties
- Applicant: Republic of Kenya; Defendant: George Omondi Owak
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E001 of 2020
- Procedural Posture
- Criminal Case / Sentencing Ruling After Conviction for Murder
- Outcome
- Accused sentenced to 25 years imprisonment for murder.
- Judges
- RE Aburili
- Legal Topics
- Murder, Sentencing, Mitigation, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
George Omondi Owak
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling After Conviction for Murder
Legal Issues
- 1 Whether the accused should be sentenced to death or a term of imprisonment for the offence of murder.
- 2 What weight should be given to the accused's mitigation and the circumstances of the offence.
Ratio Decidendi
Although the law prescribes death as the penalty for murder, the Supreme Court decision in Francis Muruatetu & Another v Republic grants courts discretion to impose a lesser sentence based on the circumstances and mitigation. The court found that the accused, despite being a young first offender and expressing remorse, committed a calculated act resulting in the death of the deceased. The defence of self-defence was rejected. Considering the gravity of the offence, the manner of its commission, and the objectives of sentencing, the court determined that a custodial sentence of 25 years imprisonment was appropriate, rather than the death penalty or a non-custodial sentence.
Court Disposition
Accused sentenced to 25 years imprisonment for murder.
Orders
- The accused, George Omondi Owak, is sentenced to serve 25 years imprisonment.
- Right of appeal within 14 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL CASE NO. E001 OF 2020 [MURDER]
CORAM: HON. R.E. ABURILI, J
STATE..............................................................PROSECUTION
VERSUS
GEORGE OMONDI OWAK...................................ACCUSED
RULING ON SENTENCE
1. On 15th December 2021, this court delivered a judgment wherein the accused person herein George Omondi Owak was found guilty of the murder of Geoffrey Ochieng Yamo. I convicted the accused person for the offence of Murder as stipulated in Section 203 of the Penal Code. I then ordered for a presentence report which was filed on 20th January, 2022 by Milton Kasera, Probation Officer, Siaya County Office.
2. The accused person has mitigated saying he is a first offender, prays for leniency of the court, and that he is remorseful, is an orphan and prays for a non-custodial sentence. The Prosecution prays for a long term sentence of the accused, in the manner he unlawfully, killed the deceased, to balance out the interests of justice.
3. I have also considered the scanty Presentence report filed on 26/1/2022 on the social circumstances of the accused. Noting is said of the family of the deceased which is unfortunate as the court had asked the Probation Officer to get the victim’s family and record Victim Impact Statements. Nonetheless, the accused who is a young man aged 25 years old is said to be remorseful and prays for leniency.
4. I have considered and the circumstances under which the offence of Murder was committed by the accused person herein. The accused did concessions during the hearing that he indeed stabbed the deceased although he claimed that it was the deceased and others who attacked him and that he was defending himself. The court did not buy his defence of self defence.
5. Punishment for murder, upon conviction, is death, as stipulated in Section 204 of the Penal Code. However, following the decision in the Francis Muruatetu & Another Vs Republic[2017]eKLR, the Supreme Court set a precedent and as a result, this court enjoys the judicial discretion to impose an appropriate sentence having regard to the circumstances of each case and the mitigations. The deceased did not deserve to die. The type of injuries he sustained show a calculated move by the accused to cause death or grievous harm.
6. Taking into account the Judiciary Sentencing Policy and Guidelines and objectives of the punishment, I hereby exercise and sentence the accused person herein, convict George Omondi Owak to serve 25 (twenty-five) years imprisonment.
7. Right of appeal is 14 days of today.
8. I so order.
9. File is closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 26TH DAY OF JANUARY 2022
R.E. ABURILI
JUDGE