REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
MISCELLANEOUS CRIMINAL APPLICATION NO E009 OF 2025
DANIEL ANYANGU OMOTO……………………….……………………….APPLICANT
VERSUS
REPUBLIC………………………………………………….…………………RESPONDENT
RULING
INTRODUCTION
1. The Applicant herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to death.
2. The Court of Appeal in Kisumu Criminal Appeal No 74 of 2016 upheld his conviction and sentence and dismissed his appeal.
3. On 5 th February 2025, he filed a Notice of Motion application dated 7 th January 2025 seeking resentencing. He sought that the court do consider the indefinite nature of life sentence as having been harsh, excessive, tortuous, intimidating, degrading hence, inconsistent with Article 29(f) of the Constitution.
4. In his said application that was supported by his Affidavit, he averred that the death sentence was commuted to life imprisonment following the presidential pardon.
5. His Written Submissions dated 25/06/2025 were filed on even date while those of the Respondent were dated 31 st July 2025 and filed on 6 th October 2025. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety.
LEGAL ANALYSIS
6. The Applicant invoked Articles 19, 20, 22, 23, 25, 26, 27, 28, 29, 50(2)(p), 163, 165 and 259 of the Constitution of Kenya, 2010, Section 329, 216, 333(2) of the Criminal Procedure Code. He pointed out that the High Court had inherent jurisdiction under Articles 22, 23 and 165(3) of the Constitution of Kenya to ensure the realisation of the petition rights (sic) .
7. He placed reliance on Supreme Court decision in Francis Karioko Muruatetu & 5 others vs Republic (citation not provided) where the court held that the mandatory death penalty under Section 296(2) and 297(2) as unconstitutional necessitating the resentencing of persons who had been given the mandatory death sentence.
8. He submitted that he was twenty four (24) years old at the time of incarceration, young and irrational and that he had no family. He asserted that the continued incarceration was denying him a chance to be productive and lead a meaningful life. He stated that he was remorseful and had repented and that the events of that material date that caused his parents and the victim pain, were very clear in his mind. He sought their forgiveness.
9. He averred that he had been through a journey of soul searching and had done several theological courses which were a testament that he had reformed. He said that he upheld good morals as he preached the word of God to others in Church. He promised to make good decisions in his life. He attached copies of his Certificates to his said Written Submissions.
10. He this urged the court to resentence him to a lesser sentence or to a term equivalent to the period already served or to a non-custodial sentence.
11. On its part, the Respondent cited Republic vs Jagani & Another (2001) KLR 590 where it was held that the purpose of sentence was to assist in rehabilitation of the offenders. It contended that the sentence that was imposed upon the Applicant was to instill a sense of responsibility for his actions and also allow for his rehabilitation. It also cited the case of Muruatetu & Another vs Katiba Institute & 4 others (Amicus Curiae) (Petition No 15 and 16 of 2015 (2021) KESC 31 KLR where the court highlighted the mitigating and aggravating factors to be considered while resentencing for the charge of murder.
12. It submitted that the Trial Court considered the circumstances of the case and the mitigating factors before imposing the sentence which was upheld by the Court of Appeal. It pointed out that the manner in which deceased died was heinous. It explained that the Applicant chopped off the deceased’s right hand, strangled her and also mutilated her genital organs, a sign of gender- based violence. It asserted that when he was placed on his defence, he denied knowing the deceased or her death. It added that he also denied fleeing to Nairobi after the incident and was, therefore, not remorseful.
13. It opposed the application and averred that although the Supreme Court found death sentence to be unconstitutional, it did not outlaw the same and stated that death sentence was still applicable as a discretionary maximum penalty. It urged this court to find that his application lacked merit and dismiss the same.
14. On 6 th July 2021, the Supreme Court gave guidelines in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) to the effect that t he decision of Muruatetu only applied in respect to sentences of murder under Sections 203 and 204 of the Penal Code. It also clarified that all offenders who had been subject to the mandatory death penalty and desired to be heard on sentence would be entitled to re-sentencing hearing.
15. The Supreme Court was categorical that a n application for re-sentencing arising from a trial before the High Court could only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court . It was also emphatic that w here an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn.
16. It further directed that in a re-sentencing hearing, the court had to record the Prosecution’s and the Appellant’s submissions under Section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence. It added that where the appellant has lodged an appeal against sentence alone, the appellate court would proceed to receive submissions on re-sentencing.
17. It clarified that the guidelines would be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals and that the same would also apply to sentences imposed under Section 204 of the Penal Code before the decision in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) .
18. It reiterated that in re-hearing the sentence for the charge of murder, the court had to take into account the mitigating factors that had earlier been set out in the said case of Francis Karioko Muruatetu & Another vs Republic (Supra). It further directed that the Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in the said case.
19. Bearing in mind the case of Francis Karioko Muruatetu & Another vs Republic (Supra) and the Sentencing Policy Guidelines, 2023 of the Judiciary, this court was satisfied that this was a suitable case for it to exercise its discretion to review the life sentence. Notably, in the case of William Obondo Ochola vs Republic [2021] eKLR , this very court found and held that the commutation of the death sentence to life imprisonment by the President was an executive order and was not as a result of a judicial function.
20. It was the considered view of this court that the Applicant herein was thus entitled to the benefit of re-sentencing by this court as failure to review his sentence would be discriminatory and contrary to the provisions of Article 27(4) of the Constitution of Kenya which prohibited any form of discrimination.
21. This court took cognisance of the fact that one of the objectives of punishment is retribution. Indeed, justice was not only to be done, it also had to be seen to be done. Be that as it may, while there was need to send a strong message to the society that violence against other persons was strongly condemned, convicts who had reformed and were remorseful ought to be given a second chance and have a new lease of life where appropriate.
22. Notably, the death of the deceased was horrific. She had a visible cut wound on the right thigh. The right hand was cut off, there were bruises on the neck and private parts were mutilated. Internally, the genital system had mutilation and the cervical system had injuries. In the doctor’s opinion, the cause of death was respiratory arrest secondary to strangulation. The murder could only have been said to have been gruesome. It was so pre-meditated and malicious.
23. Having said so, the Applicant herein had already spent about ten (10) years behind bars from the date of his sentencing. He had obviously had sufficient time to reflect on his actions. He furnished the court with several certificates on Bible studies. He attached a recommendation letter from Ephantus Kariuki, Officer in Charge, Kibos Maximum Security Prison which was favourable.
24. Taking all the factors into consideration, this court came to the firm view that a sentence of thirty five (35) years imprisonment was fair in the circumstances of the case herein.
25. Notably, Section 333 (2) of the Criminal Procedure Code cap 75 (Laws of Kenya) was previously inapplicable in the circumstances of the case herein as the Applicant herein was serving a life imprisonment which was an indeterminate sentence. However, as the court was meting upon him a determinate sentence, the provisions of Section 333(2) of the Criminal Procedure Code were now applicable herein.
26. Notably, Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:-
“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody ” (emphasis court).
27. The requirement under with Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR .
28. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
29. The Applicant herein was arraigned in court on 11 th January 2012. He was sentenced on 5 th November 2015. This court hereby grant him the period he spent in remand while the case was ongoing.
DISPOSITION
30. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 7the January 2025 and filed on 5 th February 2025 was merited and the same be and is hereby allowed.
31. It is hereby ordered and directed that the period the Applicant spent in custody between 11 th January 2012 and 5 th November 2015 be and is hereby taken into account when computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
32. It is so ordered.
DATED and SIGNED at KISUMU this 29 th day of April 2026
J. KAMAU
JUDGE
hCCR MISC APPL NO E009 OF 20254
IN THE HIGH COURT OF KENYA AT VIHIGA
MISCELLANEOUS CRIMINAL APPLICATION NO E009 OF 2025
DANIEL ANYANGU OMOTO……………………….……………………….APPLICANT
VERSUS
REPUBLIC………………………………………………….…………………RESPONDENT
RULING
INTRODUCTION
1. The Applicant herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to death.
2. The Court of Appeal in Kisumu Criminal Appeal No 74 of 2016 upheld his conviction and sentence and dismissed his appeal.
3. On 5 th February 2025, he filed a Notice of Motion application dated 7 th January 2025 seeking resentencing. He sought that the court do consider the indefinite nature of life sentence as having been harsh, excessive, tortuous, intimidating, degrading hence, inconsistent with Article 29(f) of the Constitution.
4. In his said application that was supported by his Affidavit, he averred that the death sentence was commuted to life imprisonment following the presidential pardon.
5. His Written Submissions dated 25/06/2025 were filed on even date while those of the Respondent were dated 31 st July 2025 and filed on 6 th October 2025. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety.
LEGAL ANALYSIS
6. The Applicant invoked Articles 19, 20, 22, 23, 25, 26, 27, 28, 29, 50(2)(p), 163, 165 and 259 of the Constitution of Kenya, 2010, Section 329, 216, 333(2) of the Criminal Procedure Code. He pointed out that the High Court had inherent jurisdiction under Articles 22, 23 and 165(3) of the Constitution of Kenya to ensure the realisation of the petition rights (sic) .
7. He placed reliance on Supreme Court decision in Francis Karioko Muruatetu & 5 others vs Republic (citation not provided) where the court held that the mandatory death penalty under Section 296(2) and 297(2) as unconstitutional necessitating the resentencing of persons who had been given the mandatory death sentence.
8. He submitted that he was twenty four (24) years old at the time of incarceration, young and irrational and that he had no family. He asserted that the continued incarceration was denying him a chance to be productive and lead a meaningful life. He stated that he was remorseful and had repented and that the events of that material date that caused his parents and the victim pain, were very clear in his mind. He sought their forgiveness.
9. He averred that he had been through a journey of soul searching and had done several theological courses which were a testament that he had reformed. He said that he upheld good morals as he preached the word of God to others in Church. He promised to make good decisions in his life. He attached copies of his Certificates to his said Written Submissions.
10. He this urged the court to resentence him to a lesser sentence or to a term equivalent to the period already served or to a non-custodial sentence.
11. On its part, the Respondent cited Republic vs Jagani & Another (2001) KLR 590 where it was held that the purpose of sentence was to assist in rehabilitation of the offenders. It contended that the sentence that was imposed upon the Applicant was to instill a sense of responsibility for his actions and also allow for his rehabilitation. It also cited the case of Muruatetu & Another vs Katiba Institute & 4 others (Amicus Curiae) (Petition No 15 and 16 of 2015 (2021) KESC 31 KLR where the court highlighted the mitigating and aggravating factors to be considered while resentencing for the charge of murder.
12. It submitted that the Trial Court considered the circumstances of the case and the mitigating factors before imposing the sentence which was upheld by the Court of Appeal. It pointed out that the manner in which deceased died was heinous. It explained that the Applicant chopped off the deceased’s right hand, strangled her and also mutilated her genital organs, a sign of gender- based violence. It asserted that when he was placed on his defence, he denied knowing the deceased or her death. It added that he also denied fleeing to Nairobi after the incident and was, therefore, not remorseful.
13. It opposed the application and averred that although the Supreme Court found death sentence to be unconstitutional, it did not outlaw the same and stated that death sentence was still applicable as a discretionary maximum penalty. It urged this court to find that his application lacked merit and dismiss the same.
14. On 6 th July 2021, the Supreme Court gave guidelines in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) to the effect that t he decision of Muruatetu only applied in respect to sentences of murder under Sections 203 and 204 of the Penal Code. It also clarified that all offenders who had been subject to the mandatory death penalty and desired to be heard on sentence would be entitled to re-sentencing hearing.
15. The Supreme Court was categorical that a n application for re-sentencing arising from a trial before the High Court could only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court . It was also emphatic that w here an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn.
16. It further directed that in a re-sentencing hearing, the court had to record the Prosecution’s and the Appellant’s submissions under Section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence. It added that where the appellant has lodged an appeal against sentence alone, the appellate court would proceed to receive submissions on re-sentencing.
17. It clarified that the guidelines would be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals and that the same would also apply to sentences imposed under Section 204 of the Penal Code before the decision in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) .
18. It reiterated that in re-hearing the sentence for the charge of murder, the court had to take into account the mitigating factors that had earlier been set out in the said case of Francis Karioko Muruatetu & Another vs Republic (Supra). It further directed that the Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in the said case.
19. Bearing in mind the case of Francis Karioko Muruatetu & Another vs Republic (Supra) and the Sentencing Policy Guidelines, 2023 of the Judiciary, this court was satisfied that this was a suitable case for it to exercise its discretion to review the life sentence. Notably, in the case of William Obondo Ochola vs Republic [2021] eKLR , this very court found and held that the commutation of the death sentence to life imprisonment by the President was an executive order and was not as a result of a judicial function.
20. It was the considered view of this court that the Applicant herein was thus entitled to the benefit of re-sentencing by this court as failure to review his sentence would be discriminatory and contrary to the provisions of Article 27(4) of the Constitution of Kenya which prohibited any form of discrimination.
21. This court took cognisance of the fact that one of the objectives of punishment is retribution. Indeed, justice was not only to be done, it also had to be seen to be done. Be that as it may, while there was need to send a strong message to the society that violence against other persons was strongly condemned, convicts who had reformed and were remorseful ought to be given a second chance and have a new lease of life where appropriate.
22. Notably, the death of the deceased was horrific. She had a visible cut wound on the right thigh. The right hand was cut off, there were bruises on the neck and private parts were mutilated. Internally, the genital system had mutilation and the cervical system had injuries. In the doctor’s opinion, the cause of death was respiratory arrest secondary to strangulation. The murder could only have been said to have been gruesome. It was so pre-meditated and malicious.
23. Having said so, the Applicant herein had already spent about ten (10) years behind bars from the date of his sentencing. He had obviously had sufficient time to reflect on his actions. He furnished the court with several certificates on Bible studies. He attached a recommendation letter from Ephantus Kariuki, Officer in Charge, Kibos Maximum Security Prison which was favourable.
24. Taking all the factors into consideration, this court came to the firm view that a sentence of thirty five (35) years imprisonment was fair in the circumstances of the case herein.
25. Notably, Section 333 (2) of the Criminal Procedure Code cap 75 (Laws of Kenya) was previously inapplicable in the circumstances of the case herein as the Applicant herein was serving a life imprisonment which was an indeterminate sentence. However, as the court was meting upon him a determinate sentence, the provisions of Section 333(2) of the Criminal Procedure Code were now applicable herein.
26. Notably, Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:-
“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody ” (emphasis court).
27. The requirement under with Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR .
28. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
29. The Applicant herein was arraigned in court on 11 th January 2012. He was sentenced on 5 th November 2015. This court hereby grant him the period he spent in remand while the case was ongoing.
DISPOSITION
30. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 7the January 2025 and filed on 5 th February 2025 was merited and the same be and is hereby allowed.
31. It is hereby ordered and directed that the period the Applicant spent in custody between 11 th January 2012 and 5 th November 2015 be and is hereby taken into account when computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
32. It is so ordered.
DATED and SIGNED at KISUMU this 29 th day of April 2026
J. KAMAU
JUDGE
hCCR MISC APPL NO E009 OF 20254