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(2010) JELR 105480 (CA)

Court of Appeal  •  Criminal Appeal 17 of 2008  •  30 Jul 2010  •  Kenya

Riaga Samuel Cornelius Omolo, Philip Nyamu Waki, John walter Onyango Otieno



Introduction: 1) The appellant before us raises an issue of singular historical moment in this country in relation to the offence of murder and the penalty of death attendant thereto. We make reference to “murder and the penalty of death ” because that was the issue upon which the appeal was restricted and submissions thereon made. We say “historical” because the offence of murder and the punishment for it has been with us as a country for 70 years of colonialism through various Orders in Council, and now for more than 45 years of independence under the Penal Code. That is more than a century, but, as far as we know, no serious challenge has been made on the substantive offence or the punishment for it. 2) The offence of murder and the punishment for it are provided for in the Penal Code under section 203 as read with section 204 as follows: “203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murde…

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