[2021] KEHC 9265 (KLR)
Although the offence of murder ordinarily attracts the death penalty, the court recognized that the mandatory nature of the death sentence has been declared unconstitutional. The court considered the circumstances of the offence, including the accused persons' motives, their remorse, first offender status, and the...
Source-derived case information.
- Citation
- [2021] KEHC 9265 (KLR)
- Parties
- Applicant: Republic of Kenya; Defendant: Julius Nyakwaka; Defendant: Koyo Tera Obuchi
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 24 of 2017
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- Both accused persons sentenced to ten years' imprisonment each, to be calculated from their respective dates of arrest.
- Judges
- RE Aburili
- Legal Topics
- Murder, Sentencing, Mitigation, Presentence Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
Julius Nyakwaka
Defendant
Koyo Tera Obuchi
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused persons should be sentenced to death or a lesser sentence for the offence of murder.
- 2 What mitigating factors, if any, should influence the sentence imposed on the accused persons.
Ratio Decidendi
Although the offence of murder ordinarily attracts the death penalty, the court recognized that the mandatory nature of the death sentence has been declared unconstitutional. The court considered the circumstances of the offence, including the accused persons' motives, their remorse, first offender status, and the period already spent in custody. The court exercised its discretion to impose a determinate term of imprisonment rather than the death penalty, finding that a sentence of ten years' imprisonment for each accused, to be calculated from the date of arrest, was appropriate in the circumstances.
Court Disposition
Both accused persons sentenced to ten years' imprisonment each, to be calculated from their respective dates of arrest.
Orders
- Each accused person, Julius Nyakwaka and Koyo Tera Obuchi, to serve ten (10) years imprisonment from the date of arrest, 24/9/2017.
- Right of appeal explained.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL CASE NO. 24 OF 2017
CORAM: HON. R.E. ABURILI J
STATE........................................................................................................PROSECUTION
VERSUS
JULIUS NYAKWAKA............................................................................... 1ST ACCUSED
KOYO TERA OBUCHI............................................................................ 2ND ACCUSED
RULING ON SENTENCE
1. On 16/12/2020 this court delivered judgment finding the 2 accused persons herein guilty of the offence of Murder as charged and convicted them accordingly. The court then ordered for a Presentence report which was filed on 1/2/2021.
2. I have considered the mitigation by Mr. Ochanyo counsel for the accused persons on behalf of their advocate Mr. Oduor. I have also considered the mitigations by the accused persons themselves and the circumstances under which the offence herein was committed. I have given equal consideration to the Presentence reports compiled and filed by the Probation Officer, Mr. David O. Odumba of Siaya Sub-county, dated 1/2/2021.
3. I take cognizance of the fact that life which is precious was lost under very cruel hands of the accused persons in the name of revenge over the 1st accused person’s wife being unfaithful to him. The 1st accused did not have to hack his rival to death. There are ways and means of resolving domestic disputes and killing is not one of the ways. The accused persons are first offenders. They are remorseful and regret the offence. They have been in prison for close to 4 years awaiting trial. Sentence upon conviction for murder is death. However, as this is no longer mandatory sentence and considering the circumstances under which this heinous offence was committed leading to loss of life, and the mitigation.
4. I exercise discretion and sentence each of the two accused persons Julius Nyakwaka and Koyo Tera Obuchi to each serve ten (10) years imprisonment to be calculated from their respective dates of arrest on 24/9/2017.
5. Right of Appeal explained.
6. Orders accordingly.
Dated, signed and Delivered at Siaya this 1st Day of February, 2021
R.E. ABURILI
JUDGE
In the Presence of:
Accused persons and their Counsel Mr. Ochanyo Advocate h/b for Mr. Odongo
Mr. Kakoi, Principal Prosecution Counsel
Court Assistant: Modestar and Mr. Mboya