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Court of AppealPartially AllowedCriminal Appeal (Siaya Criminal Case No 21 of 2015)

Wera v Republic (Criminal Appeal 118 of 2018) [2024] KECA 137 (KLR)

Court of Appeal of Kenya
9 February 2024
1,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal replaced a death sentence for murder with 30 years' imprisonment, confirming judges now have discretion after Muruatetu.

What this practically means

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Executive summary

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The appellant was convicted of murder by the High Court (Makau, J) in a judgment delivered on 2nd February 2017 and sentenced to death under section 204 of the Penal Code. His appeal to the Court of Appeal at Kisumu was confined to sentence, on two grounds: that the mandatory death sentence could no longer stand, and that the sentence was harsh and excessive given his mitigation. The court reiterated the first appellate duty, drawn from Okeno v Republic, to re-evaluate evidence and reach independent conclusions, and held that its remit extended to both legality and severity of sentence. It accepted the appellant's argument, founded on the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic, that the death sentence for murder is no longer mandatory; state counsel conceded the sentence should be reviewed. However, the state urged a stiff sentence given the aggravating circumstances. The court described the facts as severe gender-based violence: the appellant fatally and relentlessly assaulted his wife over spending a night away from home after a funeral. Adopting the reasoning it had expressed in Frank Turo v Republic against femicide and coercive control of women, the court concluded that thirty years' imprisonment was warranted. It set aside the death sentence and substituted a thirty-year prison term, directing, under section 333(2) of the Criminal Procedure Code, that the appellant's remand period from 14th October 2014 to 4th April 2016 be deducted. The appeal succeeded in part; conviction and the underlying decision otherwise stood undisturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the mandatory death sentence imposed under section 204 of the Penal Code remained lawful in light of Muruatetu
  2. 2.Whether the sentence of death was harsh and excessive in the circumstances, including mitigation

Key legal issues

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01

Mandatory death sentence for murder

Holding

After Muruatetu, the death sentence for murder is discretionary; the trial judge erred in treating his hands as tied

Reasoning

The court held that at the time of sentencing death was considered the only possible sentence for murder, but that position changed with the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic. State counsel conceded the sentence ought to be reviewed in light of current jurisprudence, and the court agreed.

p. 2
02

Appropriate sentence for gender-based homicide

Holding

A thirty-year term of imprisonment was warranted for the brutal, prolonged assault of the appellant's wife amounting to femicide

Reasoning

Applying its reasoning in Frank Turo v Republic, the court condemned gender-based violence and coercive control over wives, noted the assault was relentless and committed with depravity, and concluded that thirty years' imprisonment was the appropriate sentence despite the concession that the sentence be reviewed.

p. 3
03

Duty of first appellate court

Holding

On a first appeal the court re-evaluates the evidence and reaches its own conclusions while making allowance for not having seen or heard the witnesses

Reasoning

Relying on Okeno v Republic, the court restated the settled role of a first appellate court. It observed the appeal was solely against sentence, so its remit covered legality and severity of sentence rather than a full merits re-hearing.

p. 2
04

Credit for time in remand

Holding

The period spent in remand custody is deductible from the sentence under section 333(2) of the Criminal Procedure Code

Reasoning

The court recorded that the appellant was in remand from 14th October 2014, when arraigned at the Kisumu High Court, to 4th April 2016, when released on bail, and directed that this period be deducted from the thirty-year sentence.

p. 3

Legal principles established

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  • Following Muruatetu, the sentence for murder is no longer a mandatory death sentence; sentencing courts have discretion
  • On a first appeal against sentence, the appellate court may review both the legality and severity of the sentence
  • On a first appeal the court must re-evaluate and weigh the evidence and reach its own conclusions, making allowance for not having seen or heard the witnesses
  • Periods spent in remand custody must be deducted from a sentence under section 333(2) of the Criminal Procedure Code

Court orders

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  1. 1.The death sentence imposed by the High Court is set aside and substituted with a prison term of thirty (30) years
  2. 2.The period the appellant spent in remand between 14th October 2014 and 4th April 2016 shall be deducted from the sentence under section 333(2) of the Criminal Procedure Code

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Siaya Criminal Case No 21 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal against sentence (Criminal Procedure Code appellate jurisdiction)

Relief refused

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Any lighter sentence than thirty (30) years imprisonment

The court found the gender-based homicide aggravated and adopted the thirty-year term it had endorsed in Frank Turo v Republic

p. 3

Costs

No costs order made.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that all factors considered in this case, a sentence of thirty (30) years imprisonment is warranted. We, therefore, hereby set aside the death sentence imposed by the High Court and substitute thereto a prison term of thirty (30) years.
p. 3final orders - sentence substitution
By dint of section 333(2) of the Criminal Procedure Code, this period shall be deducted from his sentence.
p. 3remand credit
It is no longer the case that the sentence for murder is the mandatory death sentence prescribed in section 204 of the Penal Code.
p. 2post-Muruatetu sentencing discretion
We turn our face firmly against the anachronism that violence, even fatal violence as in this case, is an acceptable currency of spousal interaction.
p. 3gender-based violence (quoting Frank Turo v Republic)
our remit permits us to review both the legality and severity of the sentence.
p. 2scope of first appellate review on sentence

Issues in the judgment

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minor

Case number of the appeal itself is not stated in the judgment text; only the trial case number (Siaya Criminal Case No 21 of 2015) appears

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wera v Republic (Criminal Appeal 118 of 2018) [2024] KECA 137 (KLR)", Case Analysis (2024). Criminal Appeal (Siaya Criminal Case No 21 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/137/eng@2024-02-09

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