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Court of AppealPartially AllowedCriminal Appeal against sentence from High Court Criminal Case No. 53 of 2011

Owala v Republic (Criminal Appeal 356 of 2019) [2025] KECA 718 (KLR)

Court of Appeal of Kenya
25 April 2025
HOH. A. OmondiLKL. KimaruWKW. Korir
1,158 words in judgment
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The bottom line

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Kenya's Court of Appeal replaced a death sentence with 20 years' imprisonment, applying the Muruatetu decision against mandatory death penalties.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu against sentence only, arising from a conviction for murder contrary to Section 203 as read with Section 204 of the Penal Code by the High Court (Chemitei, J.) on 2nd November 2015, for which the appellant had been sentenced to death as then mandatorily required by law. The sole issue the court framed was whether the sentence meted out by the trial court was sound in law. The appellant, through counsel Mr. Omondi, relied on the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, which declared the mandatory death sentence for murder under Section 204 of the Penal Code unconstitutional, and urged substitution of a fifteen-year custodial sentence. The State, through Mr. Okango, conceded the appeal, acknowledging that the trial court's discretion had been fettered by the then-mandatory penalty, but submitted that the offence was heinous and proposed twenty-five years. The court confirmed its jurisdiction under Section 379(1)(b) of the Criminal Procedure Code, restated the familiar principles from Bernard Kimani Gacheru v Republic on interference with sentencing discretion, and held that Muruatetu binds it, entitling the appellant to reconsideration of sentence. Weighing the appellant's status as a first offender who expressed remorse against the vicious and brutal manner of the killing - the deceased being cut with a panga, losing a wrist in one clean cut and dying of shock and blood loss - the court found the offence aggravated. It set aside the death sentence and substituted twenty (20) years' imprisonment effective from 12th September 2011, the date of the appellant's arraignment. No costs order was made. The judgment is a single judgment of the full bench of three Judges of Appeal with no separate opinions.

Questions the Court framed

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

  1. 1.Whether the death sentence meted upon the appellant by the trial court is sound in law, in light of the Supreme Court's decision in Muruatetu declaring the mandatory death sentence for murder unconstitutional

Key legal issues

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01

Jurisdiction to entertain an appeal against sentence from the High Court

Holding

Section 379(1)(b) of the Criminal Procedure Code confers jurisdiction on the Court of Appeal to hear an appeal against sentence with leave, unless the sentence is one fixed by law

Reasoning

The court identified the statutory foundation of its jurisdiction before addressing the merits, quoting the provision in full. Since the appeal followed the Muruatetu decision, the death sentence was no longer one fixed by law and reconsideration was open.

p. 2
02

Appropriateness of the sentence in light of Muruatetu and the aggravating circumstances

Holding

The death sentence, imposed under the then-mandatory provision, must be set aside and substituted with a determinate term; given the aggravated, brutal nature of the killing, twenty years' imprisonment effective from arraignment was appropriate

Reasoning

The court applied Muruatetu, which is binding on it, considered the appellant's mitigation as a first offender expressing remorse, but weighed the vicious manner of the attack - a panga cutting off the deceased's wrist in one clean cut with deep wounds causing death by shock and blood loss - as aggravating, justifying a substantial custodial term rather than the fifteen years proposed by the appellant.

p. 3

Legal principles established

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  • The Supreme Court's declaration in Muruatetu that the mandatory death sentence for murder under Section 204 of the Penal Code is unconstitutional binds the Court of Appeal, entitling persons sentenced to death under the mandatory provision to reconsideration of sentence
  • An appellate court will not interfere with a trial court's sentencing discretion unless the sentence is manifestly excessive, or the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle

Court orders

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  1. 1.The death sentence imposed upon the appellant by the trial court is set aside
  2. 2.Substituted with a custodial sentence of twenty (20) years imprisonment, effective from 12th September, 2011, when the appellant was arraigned before the High Court

The bench

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

HO
majority
LK
majority
WK
majority
On appeal from
High Court of Kenya at Kisumu
Criminal Case No. 53 of 2011
Jurisdiction invoked
Section 379(1)(a) & (b) of the Criminal Procedure Code

Relief refused

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Counsel's proposed custodial sentence of fifteen (15) years for the appellant

The court found the offence was aggravated, committed in a vicious and brutal manner, and substituted a twenty-year term instead

p. 3

Costs

No costs order was made in the judgment.

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.

Considering the decision of the Supreme Court in the Muruatetu case (supra), the manner in which the ofience was committed, and all the surrounding circumstances, we hereby set aside the death sentence imposed upon the appellant by the trial court. We substitute it with a custodial sentence of twenty (20) years imprisonment, efiective from the date of the appellant's arraignment before the trial court.
p. 3Disposal - substitution of death sentence with 20 years' imprisonment
For avoidance of doubt, the sentence will be calculated from 12th September, 2011, when the appellant was arraigned before the High Court.
p. 3Commencement date of the substituted sentence
This decision is binding on this Court. In the premises, the appellant is deserving of a re-consideration of his sentence.
p. 2Binding effect of Muruatetu on sentencing for murder
On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.
p. 2Test for appellate interference with sentence (as stated in Bernard Kimani Gacheru vs. Republic)

Issues in the judgment

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minor

The name of the appellant is not stated anywhere in the judgment; the parties are referred to only as 'the appellant' and 'the State'

minor

The judgment is dated and delivered on 25th April, 2025, some nine and a half years after the judgment appealed from, without explaining the delay; this may reflect the date of a resentencing hearing following Muruatetu

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, "Owala v Republic (Criminal Appeal 356 of 2019) [2025] KECA 718 (KLR)", Case Analysis (2025). Criminal Appeal against sentence from High Court Criminal Case No. 53 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/718/eng@2025-04-25

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