The conviction of former Migori Governor Okoth Obado in the murder of Sharon Otieno has brought to the fore another question that often follows major murder cases: What punishment does Kenyan law provide for a person convicted of murder?

For Sharon’s family, Thursday’s verdict marked the end of an agonising eight-year wait for justice.

Speaking outside the courtroom after the judgment, the family’s lawyer, Victor Hezekiah, described the legal journey as “gruesome” but said the family was grateful that the court had finally delivered justice.

“For us, together with the family, we are grateful to the court for the judgment that has been rendered. It has been a gruesome eight years. We are happy with the conviction. We believe that justice has at last been served to Sharon,” Hezekiah said.

The conviction, however, is not the final stage of the case.

Obado and his co-accused, Michael Oyamo and Caspal Obiero, will proceed to the sentencing stage, where the court will consider the appropriate punishment after hearing mitigation and other relevant submissions.

What does the law say about murder?

Under Section 203 of the Penal Code, a person who, with malice aforethought, causes the death of another person through an unlawful act or omission is guilty of murder.

Section 204 historically provided that a person convicted of murder “shall be sentenced to death.”

However, the legal position is no longer that a death sentence must automatically follow every murder conviction.

In 2017, the Supreme Court in the landmark Muruatetu decision declared the mandatory nature of the death penalty for murder unconstitutional.

The court held that judges must have discretion to consider the circumstances of each case, including mitigation, before imposing sentence. The decision did not abolish the death penalty. Rather, it made death a discretionary maximum punishment.

In other words, the maximum penalty for murder remains death, but a convicted person cannot automatically be sentenced to death solely because of the conviction.

Why sentencing is a separate stage

The distinction between conviction and sentencing is important.

A conviction answers the question of whether the prosecution has proved the accused’s guilt beyond reasonable doubt.

Sentencing is a separate judicial process in which the court considers the appropriate punishment.

The Supreme Court has recognised the importance of mitigation before sentencing. Factors that may be considered include the offender’s age, previous record, character, remorse, possibility of rehabilitation and the circumstances surrounding the offence.

The court may also consider aggravating circumstances, including the manner in which the offence was committed and the impact on the victim’s family.

This means that the circumstances surrounding the murder of Sharon Otieno will be relevant when the court considers the appropriate sentence.

The High Court, in its judgment, found that the prosecution had established a chain of circumstantial evidence linking the accused persons to the murder.

Justice Cecilia Githua noted that although none of the 42 prosecution witnesses directly witnessed the killing, the evidence presented before the court pointed to the guilt of the accused persons.

Eight years later, Sharon’s family gets justice

For Sharon’s family, the conviction represents the culmination of a long and difficult legal journey.

The case faced delays linked to the Covid-19 pandemic, transfers of judges and changes in judicial officers handling the matter.

Despite the setbacks, Hezekiah said the family remained satisfied with the outcome.

“I believe that the family is happy because they have been waiting for justice for long. Eight years is not a short time. With the conviction rendered today, I believe the family is happy that justice has finally been served for their daughter,” he said.

The court also rejected an application by the defence seeking to have the convicted persons remain on bond pending sentencing.

The decision means the case now moves to its next stage, with the court expected to determine the appropriate punishment after considering the law, the circumstances of the offence and submissions from the parties.

For the family, however, the conviction has already answered the question they have carried for eight years: that Sharon’s death would not remain without accountability.

The next question is what sentence the court will impose within the constitutional and legal framework governing murder in Kenya.