• The judge ruled that the death penalty was imposed by the Court of Appeal, and not the High Court.
• He said High Court has no jurisdiction to review the sentence imposed by the Court of Appeal
Image: FILE
Two brothers who were sentenced to death for killing an uncle will serve the sentence after a High Court dismissed their appeal.
Francis Nyongesa Oduor and his brother John Nyongesa Oduo were sentenced to death by the Court of Appeal for murdering their uncle.
A judgement delivered by Justice by Justice W. Musyoka on January 17, ruled that as the death penalty was imposed by the Court of Appeal, and not the High Court, the High Court has no jurisdiction to review the sentence imposed by the apex court.
"Consequently, the application before me is incompetent, and I hereby strike the same out. The file shall be closed," the judge ruled.
The two were serving 40 and 50 years in jail for killing their uncle in Busia.
In 2019, Appellate judges Daniel Musinga, Gatembu Kairu and Agnes Murgor ruled that the High Court made a mistake in sentencing John Nyongesa Oduor to 50 years in jail and Francis Juma Oduor to 40 years when the mandatory sentence for murder is death.
“The mandatory sentence for murder is death and the trial court had no discretion to impose any other sentence after proving the offence beyond a reasonable doubt,” ruled the judges.
The duo appealed against the sentences handed to them by Justice Francis Tuiyot for killing their uncle James Omoto Olula over a land dispute.
They argued that the judge used misleading evidence to convict them.
The two brothers killed their uncle on June 26, 2008, at Monda village in Busia.
The Oula’s second wife Faustine Makhokha had passed on and on the day. They had gone to collect her body for burial at the disputed family land.
When they arrived at the homestead with the wife’s body, the two brothers confronted him demanding that he should not bury his wife on the land since it belonged to them.
The deceased tried to plead with his nephews to allow him to bury his wife but they would hear none of it.
“In the middle of the argument, Nyongesa produced a club and hit his uncle on the head...,” said the prosecution.
Being aggrieved with the death sentence, they filed another appeal at the High court to review the ruling.