REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT HOMA BAY CRIMINAL PETITION NO.11 OF 2018 DICKSON OKELLO OUKO …... PETITIONER VERSUS THE REPUBLIC ………………. RESPONDENT RULING 1. Application considered in the light of the supporting grounds as fortified by the averment contained in the supporting affidavit dated 28 th May 2018, deponed by the petitioner/applicant and since it is not opposed by the State/Respondent, it ought to be allowed and is hereby allowed on the basis of the recent decision of the Supreme Court of Kenya (SCOK) in the case of FRANCIS K. MURUATETU & ANOTHER –VS- REPUBLIC Petition NO.15 of 2015, in which it was held:- “…..Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for mandatory death sentence ……… for avoidance of doubt this decision does not outlaw the death penalty which is still applicable as a discretionary maximum punishment.” (See also GODFREY NGOTHO MUTISO –VS- REPUBLIC – CRIMINAL APPEAL NO.17 OF 2008 and WILLIAM OKUNGU KITTINY – CRIMINAL APPEAL NO.56 OF 2013 at Kisumu, both being decisions of the Court of Appeal) 2. The position taken by both the Supreme Court and the Court of Appeal would apply “mutatis mutandis” to any other provision of the Penal Code providing for a mandatory death sentence including Section 296 (2). 3. Accordingly, the original lower court file be returned to the Senior Principal Magistrate’s Court at Homa Bay for re-hearing on sentence and variation of the death sentence if necessary by any magistrate with competent jurisdiction. However, since the original file was not availed at the hearing of this application, the same be availed on 28/6/18 when this matter shall be mentioned to confirm compliance. Ordered accordingly. J.R. KARANJAH JUDGE 21.06.2018
A note on accuracy. These pages are generated automatically from our AI-written case briefs and have not been checked by a lawyer. Case titles and citations come from Kenya Law; the counts, topics, propositions and “treatment” labels are derived from the briefs and can be incomplete or wrong. Use them as a research aid and always read the original judgment before relying on anything here. This is not legal advice.