Michael Ouma & 1 other v Republic

The Supreme Court in Muruatetu held that Section 204 stripped courts of discretion to impose an appropriate sentence based on the specific circumstances of each case. The death penalty remains lawful but only as a discretionary maximum. Courts must hold individualized sentencing hearings considering mitigation, the offender's circumstances, remorse and potential for rehabilitation. The Court of Appeal applied this binding Supreme Court pronouncement to the appellants' conviction.

Sections 216 and 329 of the Criminal Procedure Code mandate the court to consider mitigation in determining sentence. The record showed no individualized hearing was conducted. Mitigation is a vital component of the trial process; its absence denied the court the opportunity to evaluate personal circumstances, remorse and other factors vital to a proportional and just sentence. The Sentencing Policy Guidelines have made sentencing hearings mandatory, aligning with international and regional standards.

Counsel cited Ahamad Abolfathi Mohammed for the proposition that Section 333(2) requires courts to meaningfully account for time already served in remand custody, a period exceeding 11 years in this case. The Court reiterated this requirement, noting the Court of Appeal has consistently emphasized it. The failure is part of the sentencing procedural deficiencies justifying remittance for re-sentencing.

Following Muruatetu, Dickson Mwangi Munene and Chai, the Court held that cases sentenced under the now-invalid mandatory framework should be remitted to the High Court so the accused may present personal mitigation. Re-sentencing hearings must include submissions from prosecution and defence, victim impact statements, and consideration of the offender's age, character and potential for reform. Accordingly, the Court remitted this matter to the High Court.