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Court of AppealPartially AllowedCriminal Appeal 215 of 2015· [2022] KECA 936 (KLR)

James Odongo Ogot v Republic

Court of Appeal of Kenya

24 June 2022

PKP. O. Kiage MNMumbi Ngugi FTF. Tuiyott

450 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed the death sentence is no longer automatic for murder and sent a 2006 death sentence back for fresh sentencing.

What this practically means

Executive summary

James Odongo Ogot was convicted of the murder of Michael Otieno Wao, committed on 29 October 2003 at Bondo Township, and on 25 July 2006 Warsame J sentenced him to death. He appealed to the Court of Appeal against both conviction and sentence, but at the plenary hearing his counsel pressed only the challenge to sentence, submitting that the death sentence is not the only sentence available on a conviction under section 204 of the Penal Code. State counsel conceded the single point of appeal. The court held that following the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, the constitutionality of the mandatory death sentence under section 204 is no longer open to argument. However, the appellate record showed that the trial court had neither invited the appellant to mitigate nor the Republic to present aggravating circumstances, leaving the Court of Appeal without material on which to review the sentence itself. The court therefore remitted the matter to the High Court for re-sentencing, directing that it be mentioned before a Judge of that court within fourteen days for appropriate directions, on a priority date, and expressing the expectation that the High Court would apply the Muruatetu (2) [2021] re-sentencing guidelines. The appeal was thus partially allowed: the conviction stood undisturbed, but the sentence was reopened for fresh determination. The judgment is a unanimous, short disposition binding on the High Court on remittal.

Key legal issues

Effect of Muruatetu on mandatory death sentence appeals

Holding

The mandatory nature of the death sentence under section 204 is settled as unconstitutional; a convict may receive a lesser sentence.

Reasoning

The court held that Muruatetu resolved the constitutionality question, making further argument on it unnecessary; State counsel conceded the single point of appeal that the death sentence is not the only sentence for a section 204 conviction.

p. 1

Re-sentencing procedure where mitigation was never taken

Holding

Where the record shows no mitigation was invited at trial, the matter must be remitted to the High Court for re-sentencing under the Muruatetu (2) guidelines.

Reasoning

Because the record contained neither the appellant's mitigation nor any aggravating circumstances from the Republic, the court had no material on which to review sentence itself. The only option was remittal to the High Court, to apply the Muruatetu (2) sentencing guidelines on a priority basis.

p. 1

Legal principles established

Following Muruatetu, the death sentence is no longer the mandatory or only sentence for murder under section 204 of the Penal Code; the question of its unconstitutionality is settled.
Where no mitigation was taken at trial, the appellate court cannot itself fix sentence and must remit the matter to the High Court for re-sentencing.

Court orders

1.Remitted the matter to the High Court for re-sentencing on a priority date
2.Directed that the matter be mentioned before a Judge of the High Court within fourteen (14) days for appropriate directions as to resentencing

Authorities

Legislation

Penal Codesection 204

Cases cited (2)

Francis Karioko Muruatetu & another v Republic
[2017] eKLR
Declared the mandatory death sentence under section 204 of the Penal Code unconstitutional; renders the issue moot.
Francis Karioko Muruatetu and another v Republic (Muruatetu (2))
[2021] eKLR
Guidelines to be applied by the High Court on re-sentencing.

On appeal from: High Court of Kenya at Kisumu; Kisumu H.C. Criminal Case No. 102 of 2003
Jurisdiction invoked: First appellate criminal appeal against sentence under the Court of Appeal's appellate jurisdiction (Criminal Appeal 215 of 2015)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "James Odongo Ogot v Republic", Case Analysis (2022). Criminal Appeal 215 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/936/eng@2022-06-24

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