Mark Ongoro Okongo & another v Republic
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Compliance with section 169 CPC where the judgment was written by a judge who did not hear the case
The ground fails; the judgment set out the offence, the evidence and the defences with analysis, and the appellants had expressly consented under section 200(3).
The Court found the judgment fully set out the offence, prosecution evidence, the alibi defences and an analysis of them. Further, on October 31, 2016 each appellant expressly stated he had no objection to Omondi J writing the judgment, curing any prejudice under section 200(3) of the Criminal Procedure Code.
Ingredients of murder and malice aforethought
Death, causation and malice aforethought were all proved; the savage beating with weapons of a hog-tied deceased plainly evidenced malice aforethought.
The post mortem showed death from head injury and massive haemothorax with multiple fractures; PW1 and PW4 saw the appellants and others tie the deceased and beat him with poles and wood. Applying section 206 of the Penal Code and the Tubere factors, the manner of the attack established malice aforethought.
Contradictions and identification by a single witness
No material contradictions existed; identification occurred in broad daylight among known neighbours, so reliance on the evidence was safe.
The events occurred about 12.30 p.m. in daylight; PW1 had known the appellants since childhood and spoke to them. PW4 witnessed the attack from the beginning. Even had inconsistencies existed, following Joseph Maina Mwangi and Samwel Wambua Muthoka, non-prejudicial discrepancies are curable under section 382.
Re-sentencing in light of Muruatetu
The death sentence is set aside and replaced with life imprisonment, given the discretionary nature of sentencing post-Muruatetu and the facts of the savage attack.
Muruatetu removed only the mandatory nature of the death penalty, giving sentencing discretion. The trial court considered mitigation before imposing death. Weighing the circumstances and the savage attack, but noting the death penalty has not been executed in 37 years, the Court substituted life imprisonment.
Legal principles established
#- Muruatetu did not declare the death penalty unconstitutional; it only removed the mandatory nature of the death sentence for murder, leaving the sentencing judge a discretion.
- A first appellate court must re-evaluate the evidence and reach its own conclusions while bearing in mind that it did not see or hear the witnesses.
- An accused who, under section 200(3) of the Criminal Procedure Code, consents to a judgment being written by a successor judge cannot later complain of that arrangement.
- Where discrepancies in prosecution evidence do not create doubt as to guilt, they are curable under section 382 of the Criminal Procedure Code.
Court orders
#- 1.Dismissal of the appeal against conviction
- 2.Allowance of the appeal on sentence to the extent of setting aside the sentence of death
- 3.Substitution of the sentence of death with a term of life imprisonment
- On appeal from
- High Court of Kenya at Homa Bay
- HCCRC No 7 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over a High Court murder conviction and sentence (Criminal Appeal from the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Ongoro Okongo & another v Republic", Case Analysis (2022). Criminal Appeal 37 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1419/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.