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Court of AppealPartially AllowedCriminal Appeal (not numbered in judgment)

Atela v Republic (Criminal Appeal 2 of 2022) [2025] KECA 993 (KLR)

Court of Appeal of Kenya
30 May 2025
HOH. A. OmondiLKL. KimaruWKW. Korir
3,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal replaced a mandatory death sentence for murder with 35 years' imprisonment, applying the Muruatetu resentencing jurisprudence.

What this practically means

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Executive summary

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This is a first appeal against sentence only, heard at Kisumu, against the appellant's conviction for the murder of Philister Monyi Ngere and the mandatory death sentence imposed on 27th September 2017. Counsel for the appellant relied on Muruatetu to urge vacation of the mandatory death penalty, proposing ten years imprisonment; the respondent conceded the appeal only to the extent that the sentence was mandatory, but urged that the brutal, gender-motivated nature of the killing warranted maintaining the death sentence. The Court framed the sole issue as whether the death penalty was appropriate in the circumstances. It affirmed the settled principle that an appellate court will not interfere with sentence unless it is manifestly excessive or the trial court erred in principle, and noted that the trial judge, sentencing before 14th December 2017, applied the law as it then stood and cannot be faulted. Nonetheless, the appellant was entitled to benefit from the changed jurisprudence following Muruatetu. Weighing the mitigating factors (first offender, breadwinner, plea for leniency, reformatory efforts in prison) against the aggravating factors (premeditation, the vulnerable elderly victim, the gruesome decapitation, absence of remorse, and gender-motivated violence), and adopting the 'rarest of rare' standard from the Indian Supreme Court's decision in Bachan Singh, the Court found the death penalty inappropriate. It allowed the appeal, set aside the death penalty, and substituted thirty-five years imprisonment, with the sentence commencing from the date the appellant was first presented in court for plea pursuant to the proviso to section 333(2) of the Criminal Procedure Code. The judgment is a single joint judgment of the three-judge bench.

Key legal issues

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01

Whether the mandatory death sentence imposed on a pre-Muruatetu conviction could stand

Holding

The death penalty imposed in its mandatory nature before Muruatetu could not stand; the appellant was entitled to be resentenced under the current jurisprudence

Reasoning

The appellant was sentenced on 27th September 2017, before the Supreme Court's decision of 14th December 2017 declaring the mandatory death sentence unconstitutional. The trial judge therefore cannot be faulted for applying the law as it then stood, but in fairness the appellant must benefit from the change in jurisprudence. The court accordingly accepted the invitation to interfere with the sentence and proceeded to resentence afresh, weighing mitigation against aggravation.

p. 3
02

Whether the death penalty was appropriate on the facts of this murder

Holding

Although the murder was heinous, premeditated and gender-motivated, the death sentence was not appropriate; a determinate term of thirty-five years was imposed

Reasoning

The court applied the Muruatetu mitigating factors and the Sentencing Policy Guidelines, 2023, balancing them against aggravating factors: premeditation, the vulnerability of the elderly victim, the physical suffering inflicted, the absence of remorse and the gender-motivated nature of the killing. Though the death sentence remains available in deserving cases, the court found it unwarranted here and substituted a term of thirty-five years imprisonment.

p. 6

Legal principles established

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  • An appellate court will not readily interfere with a sentence unless it is manifestly excessive, or the trial court overlooked a material factor, considered wrong material, or acted on a wrong principle
  • A offender sentenced to the mandatory death penalty before the Muruatetu decision of 14th December 2017 is entitled to benefit from the changed jurisprudence on resentencing
  • Sentencing must balance mitigating factors against aggravating factors; the death sentence should be reserved for the rarest of rare cases

Court orders

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  1. 1.Appeal against sentence allowed to the extent that the death penalty is set aside
  2. 2.Appellant sentenced to thirty-five (35) years imprisonment in place of the death penalty
  3. 3.Sentence to run from 20th May 2010 in accordance with the proviso to section 333(2) of the Criminal Procedure Code
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal against sentence for murder under section 203 as read with section 204 of the Penal Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Atela v Republic (Criminal Appeal 2 of 2022) [2025] KECA 993 (KLR)", Case Analysis (2025). Criminal Appeal (not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/993/eng@2025-05-30

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