Kennedy Ogiro Ongere v Republic

Court of Appeal

24 June 2022

KMK M'Inoti MNM Ngugi FTF Tuiyott

612 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that people sentenced to death before 2017 without a chance to plead for leniency can get their sentences reviewed.

What this practically means

Executive summary

The appellant was convicted of murder contrary to section 203 as read with section 204 of the Penal Code and sentenced to death by the High Court at Homa Bay (Majanja J) on 11th April 2016, the trial court noting that the death sentence was the only penalty provided for murder. On appeal, counsel for the appellant raised only the issue of sentence, relying on the Supreme Court's decision in Muruatetu, which declared the mandatory nature of the death penalty in murder cases unconstitutional and confirmed that courts have discretion in sentencing and must consider mitigation. The appellant had not been given an opportunity to mitigate at sentencing. The State, through Mr. Onanda, did not oppose the appeal on sentence but urged the court to consider Muruatetu and the Supreme Court's directions of 6th July 2021 on applying that decision. The Court of Appeal (M'Inoti, Ngugi and Tuiyott, JJA) observed that the appellant was convicted and sentenced before Muruatetu was decided and was denied the opportunity to mitigate, which the Supreme Court's directions require before the Muruatetu sentencing guidelines are applied. The Court allowed the appeal on sentence only, remitted the matter to the High Court at Homa Bay for a re-sentencing hearing in accordance with the Muruatetu guidelines, and directed that the matter be placed before that court for mention within fourteen days for appropriate directions on re-sentencing. The conviction was not disturbed. No costs order was made.

Key legal issues

Discretion in sentencing for murder after Muruatetu

Holding

The mandatory death sentence for murder having been declared unconstitutional in Muruatetu, courts have discretion in sentencing and must consider mitigation.

Reasoning

The appellant was convicted and sentenced in April 2016, before the Supreme Court's decision in Muruatetu, and was not given an opportunity to mitigate. The Supreme Court's directions of 6th July 2021 require that a person convicted of murder be given such an opportunity before the sentencing guidelines in Muruatetu are applied. The State did not oppose the appeal on sentence. The appropriate remedy was remittal for re-sentencing.

p. 1

Legal principles established

A person convicted of murder and sentenced to the mandatory death penalty before Muruatetu, who was not given an opportunity to mitigate, is entitled to be remitted for re-sentencing under the Muruatetu guidelines.

Court orders

1.The matter is remitted to the High Court in Homa Bay for a re-sentencing hearing in accordance with the guidelines set in Muruatetu
2.The matter be placed before the High Court in Homa Bay for mention within fourteen (14) days with a view to taking appropriate directions on re-sentencing

Authorities

Legislation

Penal Codesection 203
Penal Codesection 204

Cases cited (1)

Francis Karioko Muruatetu & another v Republic
[2017] eKLR
Declared the mandatory death sentence in murder cases unconstitutional; courts have sentencing discretion and must consider mitigation.

On appeal from: High Court of Kenya at Homa Bay; HCCR No. 21 of 2013
Jurisdiction invoked: First appellate jurisdiction over appeals from the High Court exercising original criminal jurisdiction (Court of Appeal, criminal appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kennedy Ogiro Ongere v Republic", Case Analysis (2022). Criminal Appeal 155 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/620/eng@2022-06-24

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