Atela v Republic (Criminal Appeal 2 of 2022) [2025] KECA 993 (KLR) (30 May 2025) (Judgment)
Neutral citation:
[2025] KECA 993 (KLR)
Republic of Kenya
Criminal Appeal 2 of 2022
HA Omondi, LK Kimaru & WK Korir, JJA
May 30, 2025
Between
Thomas Otieno Atela
Appellant
and
Republic
Respondent
(An appeal against the judgment of the High Court at Kisumu (D.S. Majanja, J.) dated 21st September 2017 in HCCRC No. 56 of 2013
Criminal Case 56 of 2013
)
Judgment
1.Thomas Otieno Atela, the appellant herein, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on 11th November 2013 at Kabienge village, in Nyakach District within Kisumu County, the appellant murdered Philister Monyi Ngere. He pleaded not guilty, but after a trial spanning about 4 years, he was convicted of the offence of murder and sentenced to suffer death. He is dissatisfied with the sentence which is the basis of his first appeal.
2.In a nutshell, on the morning of 11th November 2013, Nicole Adhiambo (PW1) witnessed a fight between the appellant and her deceased grandmother over trees that had been cut by the appellant without permission from the deceased. After the fight, the deceased returned to the shamba, and PW1 saw the appellant follow her with a panga and attack her. The appellant then threatened PW1, saying he would harm her too if needed.
3.Another grandchild of the deceased, Jackline Achieng’ (PW8), heard PW1 crying and saw the appellant approach, carrying a bloodied panga. He threatened to kill them if they screamed. PW8 later found the deceased lying under a tree with head wounds and rushed to get help.
4.On the same day, Joseph Odhiambo (PW2) was coming from school prayers when he heard someone shout, “whatever happens should happen,” and, “that woman has insulted me enough.” He recognized the voice as that of the appellant, who he had known for a long time. Shortly thereafter, he saw the appellant carrying a blood-stained panga and wiping it on the grass while repeating the words that “whatever should happen, should happen.” On his way to Bodo market, PW2 encountered a child who told him, “mama has died.” Suspecting the child was referring to actions of the appellant and feeling afraid, he reported his suspicions to David Asanyo Juma (PW3). After PW2 informed him about his suspicions, PW3, who was an immediate neighbour, went to the deceased’s homestead where he saw the deceased’s body with the head decapitated and immediately reported the incident to the authorities.
5.George Ochieng Demba (PW4), another grandchild of the deceased testified that upon receiving the news of her demise, he proceeded to the locus in quo where he found neighbours gathered. He observed the deceased’s body under a mango tree with her head cut “badly like meat in a butchery.’’ He recalled that the previous day, the appellant had come to see the deceased and told her he would cut a tree to make charcoal, and if she refused, he would kill her.
6.Meshack Were Washore (PW 7), a neighbour of the appellant and the deceased, received the news while at Bodi and immediately left for Kabienge Village, where he found the deceased’s decapitated body. He alerted Senior Sergeant Joseph Ojune Ekasiba (PW9) who upon receiving the report proceeded to Kabienge village, where he found the deceased lying in a pool of blood with her head disfigured as a result of panga cuts. At the scene, PW9 interviewed various witnesses and started looking for the appellant at his home, but he was not there. The next day, he returned to the appellant’s homestead and found a sharp panga in the house of the appellant’s mother. The appellant was later arrested after he surrendered himself at Pap Onditi Police Station.
7.When this matter came up for hearing on 4th February 2025, the appellant, virtually appearing from Kibos Prison, was represented by learned counsel Mr. Ariho Ndung’u, while the respondent was represented by Senior Principal Prosecution Counsel (SPPC) Mr Okang’o.
8.Learned counsel Mr. Ariho sought to rely on his written submissions dated 25th November 2024. Therein, counsel urged the Court to apply the ratio decidendi in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR and vacate the death penalty for being entered in its mandatory nature. Counsel proposed a sentence of ten years from 12th November 2013, when the appellant was first arraigned in court. To justify the submission, counsel implored the Court to consider that the appellant had reformed as evidenced by a letter dated 5th May 2020 attesting to the appellant’s good character while in prison, and a certificate of completion of a bible study program by Bible League dated 22nd August 2019, a diploma certificate in Bible correspondence course from Emmaus Bible College, and another from Gospel Messenger Ministry acquired during his time in prison.
9.On his part, Mr. Okang’o conceded to the appeal only to the extent that the death penalty was handed in its mandatory nature. However, Mr. Okang’o urged the Court to consider the evidence on record regarding how the offence was committed, which in his view warranted the death penalty. According to Mr. Okang’o, this was a case of gross femicide which warranted a death penalty. Counsel therefore urged the Court to maintain the death sentence.
10.We have reviewed the record and the submissions by counsel. This being an appeal against sentence, the only issue for determination is whether the death penalty was appropriate in the circumstances of the case.
11.As an appellate Court, we are aware that sentence is a matter that rests with the discretion of the trial court and we should not readily interfere with the sentence unless, it is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or considered wrong material, or acted on a wrong principle. In that regard, the Court in Bernard Kimani Gacheru vs. Republic [2002] KECA 94 (KLR) held as follows:
12.In this case, the basis upon which our interference with the sentence is invited is that it was passed in its mandatory nature contrary to the subsequent holding by Supreme Court in Francis Karioko Muruatetu & Another vs. Republic (supra) that the mandatory nature of the death sentence as provided for murder under section 204 of the Penal Code was unconstitutional.
13.In sentencing the appellant to suffer death, the learned Judge held as follows:
14.It is important to appreciate that whereas the mandatory nature of the death penalty was declared unconstitutional on 14th December 2017, the appellant was sentenced on 27th September 2017. Since his sentencing predates the Supreme Court decision, we cannot fault the learned Judge on how he approached the sentence, as that was the prevailing jurisprudence at the time. Considering the change in jurisprudence, the appellant deserves to benefit from the current jurisprudence. On this basis, we accept the invitation to interfere with the sentence.
15.In sentencing the appellant, we are bound to consider the mitigating factors as outlined by the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic (supra) as follows:
16.The Sentencing Policy Guidelines, 2023 published by the National Council on the Administration of Justice at page 67 also provides some of the mitigating factors for the offence of murder as follows:
17.However, the mitigating factors cannot be considered in isolation of the aggravating factors. The Sentencing Policy Guidelines, 2023 at pages 66 to 67 lists some of the aggravating factors as follows:
18.It is the act of balancing the mitigating and aggravating factors that will guide us in determining what in our view is the appropriate sentence in the circumstances of the case. Learned counsel for the appellant, Mr. Ariho Ndung’u, urged for a sentence of ten years imprisonment, while learned counsel for the respondent, Mr. Okang’o, urged us to maintain the death penalty. Undoubtedly, the death sentence is still legal and can be handed down in deserving cases. The question that we must answer therefore is whether this is a case deserving of the death penalty as submitted by Mr. Okang’o or whether we should impose a term sentence as proposed by Mr. Ariho Ndung’u.
19.Perhaps, the decision of the Indian Supreme Court in Bachan Singh vs. State of Punjab (Bachan Singh) Criminal Appeal No 273 of 1979 AIR (1980) SC 898 captured the dilemma we are currently faced with when it held that:
20.The above excerpt resonates with our dilemma and there may be need for further legislative guidance as to the circumstances under which the ultimate death penalty may be imposed. In India the Supreme Court in Bachan Singh vs. State of Punjab (supra) while discussing the circumstances under which the ultimate death penalty may be imposed opined that:
21.In our view, the death sentence should not be meted simply based on the side of the bed the judge has woken up from. We would agree with the Supreme Court of India that such a life-ending sentence should be reserved for the rarest of rare cases. The question still remains whether the death penalty is befitting in the circumstances of this case.
22.What came out from the appellant’s mitigation on record is that he was a first offender and a breadwinner of his young family. He also supported his mother. Additionally, the appellant registered a plea for leniency. On the other hand, this offence was committed against an elderly woman as her grandchild watched. The appellant, despite having quarrelled with the deceased, not only picked his machete but also sharpened it before proceeding to the farm where he dismembered her head. Evidence on record shows that he had harboured the thought of ending the deceased’s life a day before he committed the act. In what is in our view a lack of remorse, the appellant, after slaughtering the deceased, asked her two grandchildren to keep watch over her head lest the dogs ate it. The manner in which the deceased met her death was captured in the postmortem report as follows:
23.In the circumstances of this case, we find that the appellant harboured the thought of ending the deceased’s life and his acts were not out of impulse. The injuries suffered by the deceased speak to the heinous nature of the act. The appellant’s action after the act which we have already pointed out portrays a barbaric attitude not just towards the deceased but also the young grandchildren who have been left with lifetime trauma. The aggravating factors we pick from this case are that there was premeditation, the victim suffered physical injury and was a vulnerable grandmother. It is not lost upon us that the deceased was killed for protecting her property rights by denying the appellant an opportunity to cut her trees. This is clearly one of the worst cases of gender motivated violence. Weighed against the mitigating factors, the aggravating factors lead us to the conclusion that the appellant deserves a long incarceration period. Flowing from our discussion, we find that the death sentence was not appropriate in the circumstances of this case. As such, we allow the appeal against sentence, set aside the death penalty, and in its place sentence the appellant to thirty-five (35) years imprisonment. Considering that the appellant was in custody throughout the trial, the sentence shall, in accordance with the proviso to section 333 (2) of the Criminal Procedure Code, run from 20th May 2010 when the appellant was presented in court for plea.
24.Consequently, this appeal, which is against sentence only, succeeds to the extent that the death penalty is set aside and substituted with a prison sentence of thirty-five (35) years.
DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF MAY 2025H. A. OMONDI.................................... JUDGE OF APPEALL. KIMARU.................................... JUDGE OF APPEALW. KORIR.................................... JUDGE OF APPEALI certify that this is a True copy of the originalDEPUTY REGISTRAR