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High CourtPartially AllowedNot stated in judgment (petition for review of sentence arising from Kisumu Cr. Case No. 828 of 2006)· [2020] KEHC 6957 (KLR)

GEOFFREY OMONDI ODERO v DIRECTOR OF PUBLIC PROSECUTION

High Court of Kenya

9 April 2020

EOE. K. O. Ogola

529 words in judgment

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The bottom line

When the death penalty is ruled unconstitutional, courts can replace it with a fixed prison term, but they must still balance mitigating factors against the severity of the crime.

What this practically means

Executive summary

The Petitioner was convicted of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code and sentenced to death in Kisumu Cr. Case No. 828 of 2006; his appeals were dismissed and the sentence upheld. The particulars were that the Petitioner and three others robbed Mordecai Owuor of a Nissan Double Cabin, registration KAH 223 H, and fatally murdered the victim during the robbery. The Petitioner petitioned the High Court for review of sentence following the Supreme Court's declaration in Francis Kariokor Muruatetu & Another v Republic that the mandatory nature of the death sentence is unconstitutional. The death sentence had been commuted to life imprisonment. The Petitioner, appearing in person, argued that the sentence violated Articles 50(1) and 25(a) of the Constitution, that his mitigation was not considered, that he was a first offender aged about 20 at the time, misled by older accomplices, remorseful, reformed and sickly, and prayed for release having served 14 years. Prosecution counsel, Mr. Fedha, sought a total sentence of 40 years, noting a life was lost and 14 years already served. Ogola J accepted the Muruatetu jurisdiction but emphasised the gravity of the killing of an innocent person whom the offenders worked for, the rights of the victim, and deterrence. The court set aside the death sentence and substituted a jail term of 27 years from the date of arrest, with a right of appeal in 14 days. The petition therefore partially succeeded: the death sentence was quashed but the Petitioner's plea for release after 14 years was refused.

Key legal issues

Constitutionality of the mandatory death sentence as applied to the Petitioner

Holding

The death sentence was set aside pursuant to the Muruatetu declaration and replaced with a determinate term of 27 years from date of arrest.

Reasoning

The court accepted that the Supreme Court in Muruatetu found the mandatory nature of the death sentence unconstitutional, giving it jurisdiction to re-sentence. It weighed the Petitioner's mitigation (first offender, youth, remorse, reform, ill health, 14 years served) against the gravity of the offence, which involved the killing of the victim during a robbery, and concluded a 27-year term was appropriate.

p. 1

Legal principles established

Following Muruatetu, the mandatory death sentence is unconstitutional and a trial court on re-sentencing may substitute an appropriate determinate sentence.

Court orders

1.Death sentence meted upon the Petitioner by the trial court set aside
2.Petitioner sentenced to a jail term of twenty seven (27) years from the date of arrest
3.Right of appeal in 14 days

Authorities

Legislation

Penal CodeSections 295 as read with 296(2)
Constitution of KenyaArticle 50(1)
Constitution of KenyaArticle 25(a)

Cases cited (1)

Francis Kariokor Muruatetu & Another vs. Republic
SCK Pet. No. 15 of 2015 (2017) eKLR
Declaration that the mandatory nature of the death sentence is unconstitutional

On appeal from: null; Kisumu Cr. Case No. 828 of 2006 (trial court)
Jurisdiction invoked: Original resentencing jurisdiction following the Supreme Court's declaration in Francis Kariokor Muruatetu & Another v Republic that the mandatory death sentence is unconstitutional

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "GEOFFREY OMONDI ODERO v DIRECTOR OF PUBLIC PROSECUTION", Case Analysis (2020). Not stated in judgment (petition for review of sentence arising from Kisumu Cr. Case No. 828 of 2006). Source:

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