Ouma & another v Republic (Criminal Appeal 131 of 2020) [2025] KECA 1063 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a mandatory death sentence, ruling every murder sentencing must include an individualized hearing before the High Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the mandatory death sentence imposed on the appellants, before the decision in Muruatetu, should be set aside for want of an individualized sentencing hearing
- 2.Whether the trial court erred in failing to consider the time the appellants spent in custody prior to sentencing under Section 333(2) of the Criminal Procedure Code
- 3.What remedy follows where sentencing was conducted without individualized mitigation
Key legal issues
#Effect of Muruatetu on mandatory death sentences for murder
The mandatory nature of the death sentence under Section 204 of the Penal Code was declared unconstitutional; sentencing for murder must be individualized and discretionary.
The Supreme Court in Muruatetu held that Section 204 stripped courts of discretion to impose an appropriate sentence based on the specific circumstances of each case. The death penalty remains lawful but only as a discretionary maximum. Courts must hold individualized sentencing hearings considering mitigation, the offender's circumstances, remorse and potential for rehabilitation. The Court of Appeal applied this binding Supreme Court pronouncement to the appellants' conviction.
Failure to conduct an individualized sentencing hearing
The High Court's failure to conduct an individualized sentencing hearing or consider personal mitigation was a significant procedural oversight warranting setting aside the sentence.
Sections 216 and 329 of the Criminal Procedure Code mandate the court to consider mitigation in determining sentence. The record showed no individualized hearing was conducted. Mitigation is a vital component of the trial process; its absence denied the court the opportunity to evaluate personal circumstances, remorse and other factors vital to a proportional and just sentence. The Sentencing Policy Guidelines have made sentencing hearings mandatory, aligning with international and regional standards.
Time spent in custody prior to sentencing
Courts must account for time spent in remand custody under Section 333(2) of the Criminal Procedure Code, which the trial court failed to do here.
Counsel cited Ahamad Abolfathi Mohammed for the proposition that Section 333(2) requires courts to meaningfully account for time already served in remand custody, a period exceeding 11 years in this case. The Court reiterated this requirement, noting the Court of Appeal has consistently emphasized it. The failure is part of the sentencing procedural deficiencies justifying remittance for re-sentencing.
Appropriate remedy for invalid mandatory sentences
Where individualized mitigation was not conducted, the matter should be remitted to the High Court for re-sentencing.
Following Muruatetu, Dickson Mwangi Munene and Chai, the Court held that cases sentenced under the now-invalid mandatory framework should be remitted to the High Court so the accused may present personal mitigation. Re-sentencing hearings must include submissions from prosecution and defence, victim impact statements, and consideration of the offender's age, character and potential for reform. Accordingly, the Court remitted this matter to the High Court.
Legal principles established
#- The mandatory nature of the death sentence under Section 204 of the Penal Code is unconstitutional; the death penalty remains lawful only as a discretionary maximum sentence and courts must conduct individualized sentencing hearings
- Where a capital sentence was imposed without a reasoned, individualized sentencing process, the appellate court will set the sentence aside and remit the matter to the High Court for re-sentencing
Court orders
#- 1.The matter is remitted to the High Court for a re-sentencing hearing, where the appellants will have an opportunity to present their personal mitigation, and the court will thereafter determine an appropriate sentence in line with constitutional principles and established jurisprudence
- 2.The appeal on sentence succeeds to that limited extent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate criminal appeal against sentence under the Criminal Procedure Code (specific appeal number and provision not stated in the judgment)
Relief refused
#Substitution by this Court of a definite custodial sentence for the death sentence
The Court preferred remittance to the High Court for re-sentencing with full individual mitigation rather than imposing a sentence itself
Costs
No costs order was made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having said as much, we do make an order that this matter be and is hereby remitted to the High Court for a re-sentencing hearing, where the appellants will have an opportunity to present their personal mitigation, and the court will thereafter determine an appropriate sentence in line with constitutional principles and established jurisprudence.
Thus, the appeal on sentence succeeds to that limited extent.
While the death penalty remains lawful as a discretionary maximum sentence, courts are required to conduct individualized sentencing hearings, factoring in mitigation and the unique circumstances of both the ofience and the ofiender.
The failure to consider mitigation denies the court the opportunity to evaluate critical factors such as the appellants' personal circumstances, any expression of remorse, and other considerations vital for determining a proportional and just sentence.
Issues in the judgment
#The judgment bears no case number or neutral citation; the appeal is identified only by a memorandum of appeal dated 11th February 2025.
No costs order appears anywhere in the judgment, including the closing orders.
The judgment does not record the date of the High Court decision or the High Court case number appealed from.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouma & another v Republic (Criminal Appeal 131 of 2020) [2025] KECA 1063 (KLR)", Case Analysis (2025). Criminal Appeal (not numbered on the copy before us). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1063/eng@2025-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.