[2022] KEHC 13394 (KLR)

State v Ogot (Criminal Case 102 of 2003) [2022] KEHC 13394 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13394 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 102 of 2003

RE Aburili, J

October 3, 2022

Between

State

Prosecution

and

James Odongo Ogot

Accused

Judgment

1. The convict herein James Odongo Ogot was convicted and sentenced to suffer death for the murder of Michael Otieno Wao on the 29/10/2003. This was vide judgment and sentence passed by Warsame J (as he then was), delivered on 25/7/2006. He appealed to the Court of Appeal vide Kisumu Court of Appeal Cr. Appeal No. 215/2018 which appeal was against conviction and sentence. However, in the intervening period, the convict/appellant abandoned his appeal against conviction and urged the superior court to only consider sentence. By the time his appeal was being considered, from the court records, the death sentence had been commuted to life imprisonment.

2. The Court of Appeal then referred the case to this court being the trial court, for resentencing of the convict/appellant, in line with the resentencing principles outlined in the Francis Karioko Muruatetu & Another Vs Republic [2017]eKLR.

3. The Court of Appeal observed that from the record of the trial court, the court neither invited the appellant to mitigate nor the Republic to state whether any aggravating circumstances existed.

4. The convict has now filed his mitigations on 14/7/2022. He states that he has been in prison for 19 years, is remorseful. That during the period in prison, he undertook several trainings life skills which have rehabilitated him. He annexed certificates in various skills such as “The way to Happiness” which is an ethical and moral training based on common sense guide for better living, Discipleship training on growing and maturing in Christ; Philip Acts 8 for Bible Study Programme, Diploma in Lamp and Light Bible Correspondence course, Certificate in Bible course on the Gospel of John, Books of Ephesians and Study of Divine Healing; Certificate in Prisoner’s Journey; Certificate in Christian Discipleship; Diploma in AFCM International, and a letter from the Clinician to show that he is on mediation for epilepsy. He states that his health status is bad such that he cannot undertake any more industry training.

5. He urges this court to consider Section 333(2) of the Criminal Procedure Code and substitute life imprisonment to the sentence already served. I have considered the request for resentencing and the mitigation by the convict.

6. The information for Murder dated 14/11/2003 signed by J.K. Mutai State Counsel states that on 29/10/2003 at Bondo Township in Bondo Township Location of Bondo District within Nyanza Province, the convict herein James Odongo Ogot murdered Otieno Wao.

7. The circumstances under which the offence of Murder was committed can be deduced from the Judgment by Warsame J (as he then was) rendered on 25/7/2006. The convict was a tenant where the deceased lived on the material day, PW1 wife of the deceased asked the convict to clear the outstanding rent arrears for the months of February to October 2003. The convict refused to pay rent and also refused to move out of the rental premises. PW1 continued demanding for rent payment from the accused who got agitated and picked a quarrel with PW1. The convict then entered his house and got out with two knives and a hammer. One of the knives was a kitchen knife while the other was sharpened on both sides of the edges. He started hitting PW1 and cut her using one of the knives.

8. The deceased tried to rescue his wife and in the process, the convict cut the deceased with a knife on the right rib. The deceased fell on the ground groaning in pain. He never woke up. The convict then tried to escape from the scene but PW1 screamed, attracting the attention of PW3. The convict was arrested about 50 metres from the scene. The knife used by the convict remained in the body of the deceased as it penetrated into his body and blood was oozing out.

9. That was the testimony of an eye witness which was corroborated by PW2, PW3 and PW4.

10. From the summarized evidence, the convict had defaulted in rent payment for over 8 months but that he never wanted to be reminded to pay the same and dared the deceased’s wife.

11. He armed himself with fatal weapons and as he attacked PW1 the deceased’s wife, the deceased intervened only for him to lose his life.

12. Again from the evidence on record, there was no amount of provocation from PW1 who was unarmed yet the convict went into his house, armed himself with two knives and got out with the intention of either killing or causing grievous harm to PW1 whose rescue caused her husband life.

13. Despite his choreographed defence, the trial Judge rightly found the defence to be made up.

14. Upon convicting the convict therein, the trial Judge had no option but to mete out the then only lawful sentence which was death as stipulated in section 204 of the Penal Code.

15. By abandoning his appeal against conviction, the convict acknowledged that he had no chances of succeeding on appeal as the evidence against him was so watertight. He therefore opted to challenge the Mandatory death sentence and the Court of Appeal in its wisdom send him back to the trial court for resentencing, applying the Francis Muruatetu I (supra) principles laid down by the Supreme Court.

16. The Supreme Court is the aforementioned case held inter alia, that mandatory death sentence for Murder is unconstitutional in so far as it deprives the trial court of the inherent discretion in sentencing and secondly, that it denies the convict the opportunity to mitigate upon which the trial court would then exercise discretion in sentencing having regard to the circumstances under which the offence was committed and the mitigations.

17. Following the above decision, many death row convicts have had to file their petitions for resentencing before the trial courts and in most cases, before the High Court.

18. It is however important to note that the Supreme Court did not hold that death sentence is unconstitutional. Death sentence in principle, is lawful under Article 26 of the Constitution. The circumstances that make death sentence unconstitutional were clearly spelt out.

19. The Supreme Court was quick to clarify that nothing stops the trial court from imposing death sentence where the circumstances under which the offence was committed i.e. aggravating circumstances call for such penalty.

20. The Supreme Court then set out the guidelines which trial courts should follow in petitions for resentencing namely, at paragraph 71 of the Muruatetu decision.a.age of the offender.b.being a first offender.c.whether the offender pleaded guilty.d.character and record of the offender.e.commission of the offence in response to gender- based violence.f.remorsefulness of the offender.g.the possibility of reform and social readaptation of the offender.h.any other factor that the court considers relevant.

21. The Supreme Court was clear that these guidelines in no way replace the judicial discretion. That they are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting Public understanding of the sentencing process. The Supreme Court also referred to the Judiciary Sentencing Policy Guidelines.

22. In the instant case, from the P3 form produced as PEX2, the convict was aged 35 years as at 5/5/2003.

23. On the other hand, the deceased Michael Otieno’s age was not disclosed even in the postmortem report. He died due to cardiopulmonary collapse secondary to severe haemorrhage following a stab 2cm x3cm right chest with massive haemothorax.

24. The Prosecution did not produce any past criminal record of the convict, he was therefore a first offender and must be treated as such.

25. The offender pleaded not guilty and was so entitled until the Court of Appeal stage when he gave up the battle of the claim of innocence.

26. From the circumstances under which the offence was committed, it is clear that the offender was a rent defaulter. He did not want to honour his personal obligation. He never wanted those who hosted him as a tenant to ask for rent. Eight months is not a short period for a tenant to default in rent repayment. The wife to the deceased was collecting rent on behalf of her brother. When she asked the offender to clear rent arrears, he dared her to do what she wanted to do. He got into his house, got out with two knives and knifed PW1 before the deceased intervened and took the fatal stab on her behalf. This was in full view of PW2, the deceased’s daughter, aged 17 years old.

27. I have no doubt in my mind that the offender’s character was wanting. He was a person of uncontrolled anger and emotions. His emotions were fatal.

28. In addition, I find that the offence was committed in response to gender-based violence. This is because PW1 who was the wife to the deceased was not armed and therefore as a woman, she did not deserve the amount of violence meted on her by the offender herein, using fatal weapons which prompted the deceased to intervene to rescue her.

29. The offender claims that he is remorseful and that he is reformed. However, he has not offered any apology to the family of the deceased. PW1 was left a widow, nursing very serious injuries sustained in the attack. PW2 was orphaned. The offender has no feelings for them. He claims that he has learnt life’s skills in prison and is therefore rehabilitated and that he has epilepsy. That may be so, from the many certificates displayed to this court. However, there is no single letter of recommendation from the prison authorities on his present character following the trainings that he has undergone while in prison and whether he now appreciates that life is sacrosanct and live and let live. That recommendation would guide or reform and social readaptation of the offender.

30. He has not tendered any apology to the deceased’s family. It is not enough that the offender has epilepsy since 2006. He has survived with epilepsy since he went to prison and therefore he cannot claim that he got it while in prison. He should have refrained from committing such a heinous offence if he knew that he had health challenges so that he enjoys the liberty to attend to his health. He is lucky that he is alive while the innocent life was lost.

31. I have said enough of what the offender was made of, from the circumstances of the offence of murder.

32. Nonetheless, the question I must answer is whether the purpose of punishment has been achieved in this case.

33. The offender met his just deserts when the trial court sentenced him to suffer death for the gruesome Murder of the deceased innocent bystander. From the many murder cases that I presided over in this jurisdiction, I am not persuaded that deterrence has been achieved by heavily punishing murder convicts.

34. Perhaps I can say that the public has been protected by incarceration of such deadly offenders but still, more unlawful killings take place meaning, no lessons are ever learnt and there is no end to this cycle of unlawful killings.

35. The offender was not accorded the opportunity to mitigate during sentencing, which opportunity this court has accorded him and he has said what he wanted to say. Without legal counsel, he couldn’t have said more here. I give him the benefit of doubt that he has undergone many life changing skills trainings and that having been behind bars from 29/10/2003 when he was arrested as the offence of murder was not bailable then, I am satisfied that the offender having escaped the hangman’s noose through commutation of death sentence to life imprisonment, he has learnt his life’s lessons that crime does not pay, and live and let live.

36. The family of the deceased Michael Otieno Wao lost a dear family member and breadwinner. No compensation or amount of punishment can bring back his life. Indeed, he died saving a life.

37. Taking into account, all the above, I hereby exercise discretion and set aside the death sentence imposed on the offender herein as commuted to life imprisonment and resentence the offender James Odongo Ogot to serve thirty five (35) years imprisonment, to be calculated from the date of his arrest on 29/10/2003, taking into account the provision of Section 333(2) of the Criminal Procedure Code, on the period the offender was in custody pending trial, conviction and sentencing on 25/7/2006.

38. I so order. This file is now closed.

DATED, SIGNED, AND DELIVERED AT KISUMU THIS 3RD DAY OF OCTOBER 2022. R.E. ABURILIJUDGE