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Court of AppealAllowedCriminal Appeal (not stated in judgment; appeal from Kisumu High Court Criminal Case No. 19 of 2015)· [2025] KECA 1423 (KLR)

Opiyo v Republic (Criminal Appeal 112 of 2020) [2025] KECA 1423 (KLR)

Court of Appeal of Kenya

31 July 2025

ASAsike-Makhandia HOH. A. Omondi LKL. Kimaru

856 words in judgment

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The bottom line

Kenya's Court of Appeal allowed a murder convict's challenge to the mandatory death sentence, sending him back to the High Court to give mitigation before being resentenced.

What this practically means

Executive summary

The appellant, Jacob Odero Opiyo, was tried in the High Court at Kisumu in Criminal Case No. 19 of 2015 on three counts of murder contrary to section 203 as read with 204 of the Penal Code, for the killings of his son in December 2014 and his parents in March 2015. He was convicted on two counts and sentenced to death, with the sentence on the third count held in abeyance since a death sentence cannot be carried out twice. On being invited to mitigate, he elected to say nothing, and the trial judge imposed the death sentence as the mandatory sentence for murder. On appeal against sentence only, the appellant invoked the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, which declared the mandatory death sentence unconstitutional, and sought remittal to the High Court for resentencing. The respondent acknowledged the unconstitutionality of the mandatory death sentence but initially argued that the appellant, having declined to mitigate at trial, should not get a second bite at the cherry; the State ultimately conceded the appeal and agreed to remittal. The Court of Appeal, comprising Asike-Makhandia, H. A. Omondi and L. Kimaru, JJ A, in a single judgment of the court, accepted the concession, found the appellant deserving of reconsideration of sentence because his mitigation was not on record, and remitted the matter to the High Court for mitigation and resentencing. The appeal was allowed. No costs order was made.

Key legal issues

Mandatory death sentence imposed without mitigation

Holding

The mandatory death sentence was unconstitutional per Muruatetu and an appellant who gave no mitigation is entitled to resentencing.

Reasoning

The respondent conceded that the mandatory nature of the death sentence was declared unconstitutional in Muruatetu. The record shows the appellant elected to say nothing in mitigation, so his mitigation is not on record. The court accepted the concession and ordered remittal to the High Court for a fresh sentencing hearing where mitigation will be recorded and considered.

p. 2

Whether declining to mitigate at trial bars resentencing on appeal

Holding

No; the respondent's objection that the appellant sought a second bite at the cherry was overtaken by the concession to remit for resentencing.

Reasoning

The respondent argued that an appeal is not a ground for an appellant to get a second bite at the cherry since he opted not to mitigate. However, the respondent then conceded the appeal and agreed the matter be remitted. The court found the appellant deserving of reconsideration of sentence because mitigation was not on record.

p. 2

Legal principles established

Where a mandatory death sentence was imposed without mitigation being recorded, the matter may be remitted to the High Court for mitigation and resentencing following Muruatetu.

Court orders

1.The appeal against the mandatory death sentence is allowed
2.The matter is remitted to the High Court for mitigation and resentencing

Authorities

Legislation

Constitution of Kenya, 2010Article 165(3)(a)(b)
Constitution of Kenya, 2010Article 159(2)(a)(b)
Constitution of Kenya, 2010Article 22(4)
Penal CodeSections 203 as read with 204

Cases cited (1)

Francis Karioko Muruatetu & Another vs. Republic
[2017] eKLR

On appeal from: High Court of Kenya at Kisumu; Criminal Case No. 19 of 2015
Jurisdiction invoked: First appeal against sentence under articles 165(3)(a)(b), 159(2)(a)(b) and 22(4) of the Constitution as invoked by the appellant, relying on Muruatetu

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Opiyo v Republic (Criminal Appeal 112 of 2020) [2025] KECA 1423 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment; appeal from Kisumu High Court Criminal Case No. 19 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1423/eng@2025-07-31

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