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Court of AppealPartially AllowedCriminal Appeal No. 27 of 2016· [2021] KECA 389 (KLR)

Josephat Lumuzi Shitabachi v Republic [2021] KECA 389 (KLR)

Court of Appeal
23 July 2021
ASASIKE-MAKHANDIAFSF. SICHALESKS. ole KANTAI
740 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal replaced a man's mandatory death sentence for killing his brother over a land dispute with 25 years' imprisonment.

What this practically means

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Executive summary

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This was a first appellate appeal to the Court of Appeal at Kisumu against the sentence of death imposed by Sitati, J. of the High Court at Kakamega on 25th June 2015 upon the appellant's conviction for murder contrary to Section 203 as read with Section 204 of the Penal Code. Although counsel filed submissions touching both conviction and sentence, the appeal was expressly confined to sentence, the appellant confirming this from prison. The facts were that the appellant, armed with a stick, repeatedly assaulted the deceased - his own brother - on the head during a fight over a boundary dispute on land; the deceased died of cerebral oedema secondary to blunt force trauma. It was not established who started the fight. The trial judge had considered a Probation Officer's Report showing the appellant was not a first offender, having earlier served probation for assaulting the deceased's wife. The court applied the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence for murder unconstitutional, holding that sentencing courts are now free to award a proportionate sentence reflecting the peculiar circumstances of each case. Noting comparable decisions in which death and life sentences were reduced, the court found a term of imprisonment appropriate. The Court of Appeal set aside the death sentence and substituted a sentence of twenty-five years' imprisonment from the date of conviction. The conviction itself was not disturbed, and no costs order was made. The decision binds subordinate courts as to the proportionality principle in sentencing for murder post-Muruatetu.

Key legal issues

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01

Whether the death sentence imposed for murder should be set aside in light of Muruatetu

Holding

The court held that Muruatetu freed courts from the strictures of the mandatory death sentence, permitting it to substitute an appropriate term of imprisonment.

Reasoning

The court observed that the Supreme Court in Muruatetu declared it unconstitutional for Parliament to provide a mandatory death sentence for murder. As a result, sentencing courts must award a sentence proportionate to the offence and consider the peculiar circumstances of each case. The appellant, who killed his brother in a fight over a land boundary, thus no longer had to serve the mandatory death sentence.

p. 1
02

What sentence is appropriate on the facts of this case

Holding

A sentence of twenty-five years' imprisonment from the date of conviction was substituted for the death sentence, guided by comparable decisions reducing sentences in murder cases.

Reasoning

The court considered the facts: the appellant repeatedly struck the deceased, his brother, on the head with a stick during a fight over a land boundary, causing death by cerebral oedema secondary to blunt force trauma. It was unknown who started the fight. Relying on comparable appellate decisions where death or life sentences were reduced (to 25 years and 10 years respectively), the court found a term of imprisonment appropriate and fixed twenty-five years.

p. 2

Legal principles established

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  • Following Muruatetu, courts sentencing for murder are no longer bound by the mandatory death sentence and must impose a proportionate sentence taking into account the particular circumstances of the case.

Court orders

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  1. 1.The sentence of death awarded by the trial court is set aside
  2. 2.A sentence of twenty-five years' imprisonment from the date of conviction is substituted therefor

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204

Cases cited (3)

  • Francis Karioko Muruatetu & Others v Republic
    [2017] eKLR
  • Daniel Kipyegon Toroitich v Republic
    [2021] eKLR
  • Eliphas Toili v Republic
    [2009] eKLR
On appeal from
High Court of Kenya at Kakamega
HC. CR.A. No. 46 of 2010
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court exercising original criminal jurisdiction (Court of Appeal, Kisumu; Criminal Appeal No. 27 of 2016)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Josephat Lumuzi Shitabachi v Republic [2021] KECA 389 (KLR)", Case Analysis (2021). Criminal Appeal No. 27 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/389/eng@2021-07-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.