Death sentence on conviction for the offence of murder is not mandatory, Judicial Officers have the discretion as to when to impose it

Republic .vs. Edward Nyarunda Ratemo

Criminal Case No. 5 of 2015

High Court of Kenya at Marsabit

S. Chitembwe, J

November 09, 2017

Reported by Chelimo Eunice

Criminal Law-murder-penalty for the offence of murder-whether death penalty for the offence of murder was mandatory-discretion of the judicial officers in imposing death penalty-whether judicial officers should have discretion on whether or not to impose death penalty for the offence of murder -Penal Code, section 204.

Brief facts:

The Accused was charged with the offence of murder contrary to section 204 of the Penal Code. The deceased and the Accused were friends.  The Accused had miraa on the that day and shared it out with the deceased. The Accused went on a drinking spree the previous day before he reported to work.   He was sober when he committed the offence. He had gone back to his house without permission and the deceased had booked him for disciplinary action.

In mitigation, it was stated that the Accused was very remorseful, that he had a wife and two children below seven years and that even though the offence attracted mandatory sentence, it was prayed that the Accused be given another sentence.

 Issues:

1. Whether death sentence on conviction for the offence of murder was not mandatory.
2. Whether judicial officers had discretion on when to impose the death sentence on conviction for the offence of murder.

Relevant Provisions of the Law

Penal Code,

Section 204, Punishment of murder

Any person convicted of murder shall be sentenced to death.

Held:

1. The punishment for murder was death under section 204 of the Penal Code. The presumption was that anyone who kills was not capable of being reformed and had to be eliminated from the society.  That sentence was more in line with the idea of an eye for an eye.  The Court appreciated that the death sentence was lawful. It was also recognized in the Constitution. The Court supported the existence of the death sentence as at time certain circumstance called for its imposition. However, the Judicial Officers should have the discretion as to when such a sentence should be imposed.  Shutting out the door of discretion was not proper.  It was the court which was best placed to know when to impose the death penalty.

2. The death penalty would not have serve any purpose in the instant case. The deceased was the Accused’s workmate and they were friends.  Not all murder incidents were the same, it could be held that murder was committed even if the circumstances vary and should be punished by death. However, some murder cases may not call for the death sentence.

3. The Court too mitigation into account and noted the fact that the Accused was 37 years old and was a Prison Warder and taken into account the period of about two years which the Accused had been in custody. The Accused was sentenced to 25 years imprisonment, with the right of appeal.