Wera v Republic (Criminal Appeal 118 of 2018) [2024] KECA 137 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a death sentence for murder with 30 years' imprisonment, confirming judges now have discretion after Muruatetu.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the mandatory death sentence imposed under section 204 of the Penal Code remained lawful in light of Muruatetu
- 2.Whether the sentence of death was harsh and excessive in the circumstances, including mitigation
Key legal issues
#Mandatory death sentence for murder
After Muruatetu, the death sentence for murder is discretionary; the trial judge erred in treating his hands as tied
The court held that at the time of sentencing death was considered the only possible sentence for murder, but that position changed with the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic. State counsel conceded the sentence ought to be reviewed in light of current jurisprudence, and the court agreed.
Appropriate sentence for gender-based homicide
A thirty-year term of imprisonment was warranted for the brutal, prolonged assault of the appellant's wife amounting to femicide
Applying its reasoning in Frank Turo v Republic, the court condemned gender-based violence and coercive control over wives, noted the assault was relentless and committed with depravity, and concluded that thirty years' imprisonment was the appropriate sentence despite the concession that the sentence be reviewed.
Duty of first appellate court
On a first appeal the court re-evaluates the evidence and reaches its own conclusions while making allowance for not having seen or heard the witnesses
Relying on Okeno v Republic, the court restated the settled role of a first appellate court. It observed the appeal was solely against sentence, so its remit covered legality and severity of sentence rather than a full merits re-hearing.
Credit for time in remand
The period spent in remand custody is deductible from the sentence under section 333(2) of the Criminal Procedure Code
The court recorded that the appellant was in remand from 14th October 2014, when arraigned at the Kisumu High Court, to 4th April 2016, when released on bail, and directed that this period be deducted from the thirty-year sentence.
Legal principles established
#- Following Muruatetu, the sentence for murder is no longer a mandatory death sentence; sentencing courts have discretion
- On a first appeal against sentence, the appellate court may review both the legality and severity of the sentence
- On a first appeal the court must re-evaluate and weigh the evidence and reach its own conclusions, making allowance for not having seen or heard the witnesses
- Periods spent in remand custody must be deducted from a sentence under section 333(2) of the Criminal Procedure Code
Court orders
#- 1.The death sentence imposed by the High Court is set aside and substituted with a prison term of thirty (30) years
- 2.The period the appellant spent in remand between 14th October 2014 and 4th April 2016 shall be deducted from the sentence under section 333(2) of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Siaya Criminal Case No 21 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal against sentence (Criminal Procedure Code appellate jurisdiction)
Relief refused
#Any lighter sentence than thirty (30) years imprisonment
The court found the gender-based homicide aggravated and adopted the thirty-year term it had endorsed in Frank Turo v Republic
Costs
No costs order made.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that all factors considered in this case, a sentence of thirty (30) years imprisonment is warranted. We, therefore, hereby set aside the death sentence imposed by the High Court and substitute thereto a prison term of thirty (30) years.
By dint of section 333(2) of the Criminal Procedure Code, this period shall be deducted from his sentence.
It is no longer the case that the sentence for murder is the mandatory death sentence prescribed in section 204 of the Penal Code.
We turn our face firmly against the anachronism that violence, even fatal violence as in this case, is an acceptable currency of spousal interaction.
our remit permits us to review both the legality and severity of the sentence.
Issues in the judgment
#Case number of the appeal itself is not stated in the judgment text; only the trial case number (Siaya Criminal Case No 21 of 2015) appears
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wera v Republic (Criminal Appeal 118 of 2018) [2024] KECA 137 (KLR)", Case Analysis (2024). Criminal Appeal (Siaya Criminal Case No 21 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/137/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.