Mukoto v Republic

Court of Appeal

8 July 2022

PKP. O. Kiage MNMumbi Ngugi FTF. Tuiyott

763 words in judgment

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The bottom line

Kenya's Court of Appeal freed a woman serving 50 years for murder, ruling judges must now sentence flexibly after the Muruatetu decision.

What this practically means

Executive summary

The appellant, Jackline Liyema Mukoto, was convicted of murdering her three-year-old daughter on July 1, 2013, after keeping an overnight vigil at a church, and was sentenced by the High Court at Kakamega (R. N. Sitati, J) to 50 years imprisonment. On appeal to the Court of Appeal at Kisumu, counsel for the appellant pursued the appeal on sentence only, asking the court to consider the relationship between the appellant and the deceased, the facts of the crime, the appellant's remorse, and the period spent in custody since July 1, 2013. The prosecution relied on the Muruatetu re-sentencing guidelines and supported the 50-year term. The court restated the Wanjema v Republic test for appellate interference with sentence and noted that the trial judge had proceeded on the premise that death was the only prescribed sentence for murder - a correct view before Muruatetu - substituting 50 years only because convicts had not been hanged for years. The court held that, sentencing after Muruatetu and considering the circumstances of the killing, the trial judge may have imposed a less severe sentence. Noting the appellant's remorse, the unclear motive, the suggestion she acted under some spell, and her incarceration since July 1, 2013, the court allowed the appeal on sentence, reduced the sentence to the period already served, and ordered her release forthwith unless held for some other lawful reason. The judgment was delivered by Kiage, Ngugi and Tuiyott, JJA on July 8, 2022.

Key legal issues

Whether the 50-year sentence was manifestly excessive or proceeded on a wrong principle

Holding

The sentence was set aside and reduced to time served because the trial judge proceeded on the premise that death was the only sentence for murder, a premise displaced by Muruatetu, and the circumstances of the killing and the appellant's remorse and time in custody warranted a lesser sentence.

Reasoning

The trial judge expressly stated there was no option but the prescribed death sentence, substituting 50 years only because convicts had not been hanged. Sentencing after Muruatetu, the court held, would likely have produced a less severe sentence given the appellant's remorse, the unclear motive, the possible spell, and her incarceration since July 1, 2013.

p. 2

Legal principles established

An appellate court should not interfere with a trial court's discretion on sentence unless it overlooked material factors, took into account immaterial factors, acted on a wrong principle, or the sentence is manifestly excessive.
Following Muruatetu, the mandatory death sentence for murder is no longer the only prescribed sentence, and sentencing courts may impose less severe sentences in appropriate circumstances.

Court orders

1.Appeal on sentence allowed
2.Sentence reduced to the period already served
3.Appellant to be released forthwith unless held for some other lawful reason

Authorities

Cases cited (2)

Francis Karioko Muruatetu & Another vs Republic
[2021] eKLR
Guidelines on re-sentencing after declaration that the mandatory death sentence for murder is unconstitutional
Wanjema v Republic
(1971) EA 493
Test for when an appellate court may interfere with a trial court's discretion on sentence

On appeal from: High Court of Kenya at Kakamega; Kakamega HCCCR No. 34 of 2013
Jurisdiction invoked: First appeal to the Court of Appeal against sentence in a murder conviction

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mukoto v Republic", Case Analysis (2022). Criminal Appeal 186 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/706/eng@2022-07-08

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