' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMABAY
MISC. CRIMINAL APPLICATION NOs. E018 and E020 OF 2025
DAVID ANGATA OPIYO……………………………………………………....1 ST APPLICANT
WILLIAM AYUGI……………………………………………………………….2 ND APPLICANT
TILLENY ODHIAMBO……………………………………………………….....3 RD APPLICANT
SILAS ONYANGO ODONGO………………………………………………..4 TH APPLICANT
PETER OTIENO ONYANGO…………………………………………………..5 TH APPLICANT
VERSUS
REPUBLIC………………………………………………………………………....RESPONDENT
(Arising from HCCR No. 15 of 2012 at Homabay and CoA No. 203 of 2014 at Kisumu)
RULING
Introduction
Before the court is an application dated 9 th January 2025 by the Applicants seeking review of the sentence of life imprisonment imposed upon the Applicants. The Applicants were originally charged and convicted of the offence of murder, contrary to Section 203 as read with Section 204 of the Penal Code, in HCCR No. 15 of 2012 . The particulars of the charges were that on the night of 16 th and 17 th August, 2010, the Applicants, jointly with others, not before the court, murdered Lameck Olima Ochieng and Felix Ouma Odhiambo at Dhogunda Beach, Usao Sub-location.
Following full trial, the Applicants were convicted as charged and the court imposed the mandatory death penalty sentence as prescribed by law at the time. Aggrieved by that decision, the Applicants lodged an appeal against the decision but appeal was dismissed for lack of merit with the consequence that both the conviction and sentence were upheld.
Later, the death penalty was commuted to life imprisonment through a Presidential directive issued by the then His Excellency President Uhuru Kenyatta on 24 th October, 2016.
It is in respect of the life sentence that the Applicant filed the instant application as supported by the affidavit of the 1 st applicant, DAVID ANGATA OPIYO. The Applicants pray that this court to revise the running sentence of life imprisonment, and substitute it with a more humane, non-discriminatory, and determinate sentence. They also pray for that the revised sentence be computed to run from the dates of their respective arrests, in accordance with citing Section 333(2) of the Criminal Procedure Code.
There is no response to the application on record but when matter came up for hearing, the prosecution counsel, Ms Mokua, submitted that the applicants having unsuccessfully approached the court of appeal are asking this court to interfere with the sentence affirmed by the court of appeal. In addition, the counsel told the court that being indeterminate, the date of commencement of computation matters not. She concluded that the application lacks merit and should thus be dismissed.
The application was canvassed by way of written submissions which the court has had the benefit of reading and has derived valuable assistance therefrom.
Issues, Analysis and determination.
There are only two issues for determination. The first is whether the Applicants have established a case for the sentence to be revised. The second is whether section 333(2) CPC was complied with by the sentencing court.
Because the death sentence was duly commuted to life imprisonment, that question of is thus not before the court but rather the propriety of the running life imprisonment sentence. In seeking to address the first issue, the court has posed to itself the question; what amounts to life imprisonment! Does it axiomatically mean the offender must die in prison!
The answer to the question was authoritatively provided by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) . in the judgment the court rendered itself thus: -
We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
Since that decision, there is jurisprudence from the superior courts which hold both the death sentence and life imprisonment as discriminatory and thus untenable under the Kenyan constitution. A few decisions from the court of appeal may suffice to demonstrate that position.
In Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) , the Court of Appeal stated at Paragraph 21 of the Judgment:
“…..we are of the view that the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under article 27 of the Constitution.
In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application Nos 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.” (Emphasis provided)
Equally the same court, differently constituted, in Ayako v Republic (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023). while reiterating the decision in the Supreme Court of Appeal of South Africa in S v Nkosi & others 2003 (1) SACR 91 (SCA) where trial court had sentenced the appellants to terms of imprisonment of 120 years, 65 years, 65 years and 45 years respectively, stated as follows:
“Thus, under the law as it presently stands, when what one may call a Methuselah sentence is imposed (i.e. a sentence in respect of which the prisoner would require something approximating to the longevity of Methuselah if it is to be served in full) the prisoner will have no chance of being released on the expiry of the sentence and also no chance of being released on parole after serving one half of the sentence. Such a sentence will amount to cruel, inhuman and degrading punishment which is proscribed by s 12(1)(e) of the Constitution of the Republic of South Africa Act 108 of 1996.
The courts are discouraged from imposing excessively long sentences of imprisonment in order to avoid having a prisoner being released on parole. A prisoner serving a sentence of life imprisonment will be considered for parole after serving at least 20 years of the sentence, or at least 15 years thereof if over 65 years, according to the current policy of the Department of Correctional Services. A sentence exceeding the probable life span of a prisoner means that he [or she] will have no chance of being released on the expiry of the sentence and also no chance of being released on parole after serving one half of the sentence. Such a sentence will amount to cruel, inhuman and degrading punishment.”
In Evans Nyamari Ayako v Republic, Criminal Appeal No 22 of 2018 , the court in defining a number of years to mean life imprisonment stated that;
“This qualitative survey of how different jurisdictions have treated life imprisonment in the recent past provides objective indicia of the emerging consensus that life imprisonment is seen as being antithetical to the constitutional value of human dignity and as being inhuman and degrading because of its indefiniteness and the definitional impossibility that the inmate would ever be released. This emerging consensus of the civilized world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness.
26. On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment.” (Emphasis added)
The Applicants in their affidavits in support to the Application have expressed remorse for their actions and have pleaded for a second chance, affirming their capacity to unlearn their wrongdoings and learn the right path through rehabilitation. However, from the records, the prosecution’s evidence paints a harrowing picture of a prolonged and brutal murder of the two deceased persons, who were fishermen. The prosecution eyewitnesses described seeing the Applicants, and others, while armed with crude weapons, including spears, pangas, and rungus, and assaulting the deceased.
The victims were not killed instantly but were beaten for hours before being taken to the lake. The fact that their bodies were only later discovered after they had been deliberately drowned in the lake, with one victim who was an underage student having had a stone tied to his body with a rope, highlights the extreme cruelty and heinous nature of the crime. The Applicants must have indeed been so heartless in the manner of execution of the act. Such conduct to court presents such a significant aggravating factor that cannot be overlooked in the resentencing process but must be taken into account.
The court is decided that the indeterminate sentence is undesirable and cannot be left to stand. It is set aside based on the binding nature of the cited decision. As such, the Court has the obligation to remedy the situation ex debito justitiae . Given the aggravating circumstances under which the murder was committed as highlighted above, the Application seeking to reconsider the sentence is allowed to the extent that the life imprisonment sentence stands set aside and must be substituted with a determinate sentence.
The determinate sentence the court finds appropriate as a substitute of the indeterminate life sentence is a sentence of 30 years imprisonment.
From the records, the applicants have been in custody since their arrest way back in the months of August and September 2010. By dint of section 333(2) of the Criminal Procedure Code, the imprisonment term of 30 years shall be computed to begin running from the respective dates each of the Applicants were arrested and placed in remand custody. For purposes of clarity, the 1 st , 2 nd and 3 rd applicants were arrested on 17 th August 2010, the 4 th applicant on 19 th August while the 3 rd was arrested on 15 th September, 2010.
Orders accordingly.
Dated, signed and delivered virtually this 30 th day of September, 2025 <>><>>'
IN THE HIGH COURT OF KENYA AT HOMABAY
MISC. CRIMINAL APPLICATION NOs. E018 and E020 OF 2025
DAVID ANGATA OPIYO……………………………………………………....1 ST APPLICANT
WILLIAM AYUGI……………………………………………………………….2 ND APPLICANT
TILLENY ODHIAMBO……………………………………………………….....3 RD APPLICANT
SILAS ONYANGO ODONGO………………………………………………..4 TH APPLICANT
PETER OTIENO ONYANGO…………………………………………………..5 TH APPLICANT
VERSUS
REPUBLIC………………………………………………………………………....RESPONDENT
(Arising from HCCR No. 15 of 2012 at Homabay and CoA No. 203 of 2014 at Kisumu)
RULING
Introduction
Before the court is an application dated 9 th January 2025 by the Applicants seeking review of the sentence of life imprisonment imposed upon the Applicants. The Applicants were originally charged and convicted of the offence of murder, contrary to Section 203 as read with Section 204 of the Penal Code, in HCCR No. 15 of 2012 . The particulars of the charges were that on the night of 16 th and 17 th August, 2010, the Applicants, jointly with others, not before the court, murdered Lameck Olima Ochieng and Felix Ouma Odhiambo at Dhogunda Beach, Usao Sub-location.
Following full trial, the Applicants were convicted as charged and the court imposed the mandatory death penalty sentence as prescribed by law at the time. Aggrieved by that decision, the Applicants lodged an appeal against the decision but appeal was dismissed for lack of merit with the consequence that both the conviction and sentence were upheld.
Later, the death penalty was commuted to life imprisonment through a Presidential directive issued by the then His Excellency President Uhuru Kenyatta on 24 th October, 2016.
It is in respect of the life sentence that the Applicant filed the instant application as supported by the affidavit of the 1 st applicant, DAVID ANGATA OPIYO. The Applicants pray that this court to revise the running sentence of life imprisonment, and substitute it with a more humane, non-discriminatory, and determinate sentence. They also pray for that the revised sentence be computed to run from the dates of their respective arrests, in accordance with citing Section 333(2) of the Criminal Procedure Code.
There is no response to the application on record but when matter came up for hearing, the prosecution counsel, Ms Mokua, submitted that the applicants having unsuccessfully approached the court of appeal are asking this court to interfere with the sentence affirmed by the court of appeal. In addition, the counsel told the court that being indeterminate, the date of commencement of computation matters not. She concluded that the application lacks merit and should thus be dismissed.
The application was canvassed by way of written submissions which the court has had the benefit of reading and has derived valuable assistance therefrom.
Issues, Analysis and determination.
There are only two issues for determination. The first is whether the Applicants have established a case for the sentence to be revised. The second is whether section 333(2) CPC was complied with by the sentencing court.
Because the death sentence was duly commuted to life imprisonment, that question of is thus not before the court but rather the propriety of the running life imprisonment sentence. In seeking to address the first issue, the court has posed to itself the question; what amounts to life imprisonment! Does it axiomatically mean the offender must die in prison!
The answer to the question was authoritatively provided by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) . in the judgment the court rendered itself thus: -
We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
Since that decision, there is jurisprudence from the superior courts which hold both the death sentence and life imprisonment as discriminatory and thus untenable under the Kenyan constitution. A few decisions from the court of appeal may suffice to demonstrate that position.
In Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) , the Court of Appeal stated at Paragraph 21 of the Judgment:
“…..we are of the view that the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under article 27 of the Constitution.
In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application Nos 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.” (Emphasis provided)
Equally the same court, differently constituted, in Ayako v Republic (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023). while reiterating the decision in the Supreme Court of Appeal of South Africa in S v Nkosi & others 2003 (1) SACR 91 (SCA) where trial court had sentenced the appellants to terms of imprisonment of 120 years, 65 years, 65 years and 45 years respectively, stated as follows:
“Thus, under the law as it presently stands, when what one may call a Methuselah sentence is imposed (i.e. a sentence in respect of which the prisoner would require something approximating to the longevity of Methuselah if it is to be served in full) the prisoner will have no chance of being released on the expiry of the sentence and also no chance of being released on parole after serving one half of the sentence. Such a sentence will amount to cruel, inhuman and degrading punishment which is proscribed by s 12(1)(e) of the Constitution of the Republic of South Africa Act 108 of 1996.
The courts are discouraged from imposing excessively long sentences of imprisonment in order to avoid having a prisoner being released on parole. A prisoner serving a sentence of life imprisonment will be considered for parole after serving at least 20 years of the sentence, or at least 15 years thereof if over 65 years, according to the current policy of the Department of Correctional Services. A sentence exceeding the probable life span of a prisoner means that he [or she] will have no chance of being released on the expiry of the sentence and also no chance of being released on parole after serving one half of the sentence. Such a sentence will amount to cruel, inhuman and degrading punishment.”
In Evans Nyamari Ayako v Republic, Criminal Appeal No 22 of 2018 , the court in defining a number of years to mean life imprisonment stated that;
“This qualitative survey of how different jurisdictions have treated life imprisonment in the recent past provides objective indicia of the emerging consensus that life imprisonment is seen as being antithetical to the constitutional value of human dignity and as being inhuman and degrading because of its indefiniteness and the definitional impossibility that the inmate would ever be released. This emerging consensus of the civilized world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness.
26. On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment.” (Emphasis added)
The Applicants in their affidavits in support to the Application have expressed remorse for their actions and have pleaded for a second chance, affirming their capacity to unlearn their wrongdoings and learn the right path through rehabilitation. However, from the records, the prosecution’s evidence paints a harrowing picture of a prolonged and brutal murder of the two deceased persons, who were fishermen. The prosecution eyewitnesses described seeing the Applicants, and others, while armed with crude weapons, including spears, pangas, and rungus, and assaulting the deceased.
The victims were not killed instantly but were beaten for hours before being taken to the lake. The fact that their bodies were only later discovered after they had been deliberately drowned in the lake, with one victim who was an underage student having had a stone tied to his body with a rope, highlights the extreme cruelty and heinous nature of the crime. The Applicants must have indeed been so heartless in the manner of execution of the act. Such conduct to court presents such a significant aggravating factor that cannot be overlooked in the resentencing process but must be taken into account.
The court is decided that the indeterminate sentence is undesirable and cannot be left to stand. It is set aside based on the binding nature of the cited decision. As such, the Court has the obligation to remedy the situation ex debito justitiae . Given the aggravating circumstances under which the murder was committed as highlighted above, the Application seeking to reconsider the sentence is allowed to the extent that the life imprisonment sentence stands set aside and must be substituted with a determinate sentence.
The determinate sentence the court finds appropriate as a substitute of the indeterminate life sentence is a sentence of 30 years imprisonment.
From the records, the applicants have been in custody since their arrest way back in the months of August and September 2010. By dint of section 333(2) of the Criminal Procedure Code, the imprisonment term of 30 years shall be computed to begin running from the respective dates each of the Applicants were arrested and placed in remand custody. For purposes of clarity, the 1 st , 2 nd and 3 rd applicants were arrested on 17 th August 2010, the 4 th applicant on 19 th August while the 3 rd was arrested on 15 th September, 2010.
Orders accordingly.
Dated, signed and delivered virtually this 30 th day of September, 2025 <>><>>'