Case ID:107556

Parties: None

Date Delivered: None

Case Type: None

Court: None

Judges: None

Citation: None

Republic v Edward Nyarunda Ratemo [2017] eKLR

Case Metadata

Case Number:

Criminal Case 5 of 2015

Parties:

Republic v Edward Nyarunda Ratemo

Date Delivered:

09 Nov 2017

Case Class:

Criminal

Court:

High Court at Marsabit

Case Action:

Sentence

Judge(s):

Said Juma Chitembwe

Citation:

Republic v Edward Nyarunda Ratemo [2017] eKLR

Advocates:

Mr. Mwangangi for the State

Miss Muna for the Accused

Court Division:

Criminal

County:

Marsabit

Advocates:

Mr. Mwangangi for the State

Miss Muna for the Accused

Case Summary:

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:

Whether death sentence on conviction for the offence of murder was not mandatory.

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:

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.

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.

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.

Extract:

Cases

East Africa

None Referred to

Statutes

East Africa

1. Penal Code (cap 63) section 204 – (Interpreted)

Advocates

1. Miss Muna for accused

History Advocates:

Both Parties Represented

Case Outcome:

Accused sentenced to 25 (twenty five) years imprisonment

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MARSABIT

CRIMINAL CASE NO.5 OF 2015

REPUBLIC ……………………………………PROSECUTOR

VRS

EDWARD NYARUNDA RATEMO…………………ACCUSED

09.11.2017

Before Hon Justice Chitembwe – Judge

Prosecutor Mr. Mwangangi for state

Court Assistant – Mr. Kashane

Accused present

Interpretation English/Kiswahili

Miss Muna for accused

Miss Muna

:

On behalf of the accused, he is very remorseful. He has a wife and two children below seven years. Even if the offence attracts mandatory sentence, I pray that he be given another sentence.

Mr. Mwangangi:

The deceased was also a father. He had a wife and children. He was an uncle and a potential grandfather. We are seeking the mandatory death sentence.

Court:

I have read the report of the Probation Officer’s report. The deceased and the accused were friends. The accused had miraa on the very day and shared it out with the deceased. I wish to acknowledge the useful information in the Probation officer’s report which did not come out during the hearing. This include the fact that the accused went on a drinking spree the previous day before he reported to work. He was sober when he committed the offence and the information that he had gone back to his house without permission and the deceased had booked him for disciplinary action.

The punishment for murder is death under section 204 of the Penal Code. The presumption is that anyone who kills is not capable of being reformed and has to be eliminated from the society. That sentence is more in line with the idea of an eye for an eye. I do appreciate that the death sentence is lawful. It is also recognized in the Constitution. I do support the existance of the death Sentence as at time certain circumstance call for its imposition. My view is that the Judicial Officers should have the discretion as to when such a sentence should be imposed. Shutting out the door of discretion is not proper. It is the Court which is best placed to know when to impose the death Penalty.

In this particular case, I do find that the death penalty will not serve any purpose. The death was the accused’s workmate and they were friends. Not all murder incidents are the same, it can be held that murder is committed even if the circumstances vary and should be punished by death.

However, some murder cases may not call for the death sentence.

Taking the mitigation into account and noting that the accused is 37 years old and was a Prison Warder and taking into account the period of about two years has been in custody, the accused is hereby sentenced to 25 (twenty five) years imprisonment. Right of appeal.

Dated, Signed and Delivered at Marsabit this 9

th

day of November 2017

SAID CHITEMBWE

JUDGE

Meta Info:

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