[2019] KEHC 1210 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and that sentencing discretion must be exercised. The court considered the period already served by the petitioner, his efforts at rehabilitation, and the gravity of the offence. The...
Source-derived case information.
- Citation
- [2019] KEHC 1210 (KLR)
- Parties
- Petitioner: Andrew Njeru Makunyi; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 137 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Death sentence set aside; substituted with a custodial sentence of thirty years from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Right to Fair Trial, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Njeru Makunyi
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu v. Republic.
- 2 Whether the period already served by the petitioner should be considered in determining the appropriate sentence.
- 3 What is the appropriate sentence for the petitioner in light of the circumstances and applicable legal principles.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and that sentencing discretion must be exercised. The court considered the period already served by the petitioner, his efforts at rehabilitation, and the gravity of the offence. The court also referenced appellate authority upholding lengthy sentences for murder. Balancing these factors, the court determined that a custodial sentence of thirty years from the date of arrest was appropriate, setting aside the death sentence and substituting it accordingly.
Court Disposition
Death sentence set aside; substituted with a custodial sentence of thirty years from date of arrest.
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to thirty (30) years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 137 OF 2018
IN THE MATTER OF: THE CONSTITUTION OF KENYA 2010 (SUPERVISORY
JURISDICTIONAND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM
OFAN INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES 2013
AND
IN THE MATTER: OF: ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, 24, 25, 27,
28, 48,50, 258 AND 259 OF THE CONSTITUTION
BETWEEN
ANDREW NJERU MAKUNYI.....................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.............................RESPONDENT
JUDGMENT
1. The Petitioner herein seeks a resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu vs. Republic [2017] eKLR.
2. The Petitioner was tried and convicted of the offence of Murder in Mombasa High Court Criminal Case No. 31 of 2007 and sentenced to death which sentence was later reduced to life imprisonment. He has been in prison for 17 years after exhausting their Appeal processes. The Petitioner unprovoked restrained the deceased while his accomplice drove a knife into the deceased’s gut leaving him for dead.
3. Mr. Fedha for the prosecution prays for a definite sentence of 40 years including the 17 years served due to the circumstances of the charge.
4. The Petitioner submits that he has made efforts to reconcile with himself, he has obtained a diploma in bible studies and he offers spiritual nourishment to inmate and he is also a motivational speaker. He further submitted that the 17 years served is adequate punishment and he prayed for a maximum sentence of 20 years.
5. I have carefully considered the issue at hand. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), this Court is entitled to take into account the period the petitioner has spent in custody in determining the sentence. I have noted that the Petitioner has been in custody for approximately 19 years since his arrest. The aim of punishment is community protection, deterrence, retribution, rehabilitation, restorative Justice and reformation.
6. This Court has considered judgments of Superior Courts that are intended to ensure consistency and fairness. In the Court of Appeal case of John Ndede Ochodho Alias Obago vs. Republic KSM CA Criminal Appeal 120 of 2014(2018) eKLRthe Court upheld a sentence of 30 years in a case of murder where the appellants assaulted the deceased several times causing his death.
7. In view of the fact that the murder is a very serious offence which involves loss of life. There is no dispute that the life he illegally took cannot be compensated. I have arrived at the decision that the Petitioner should appropriately be punished for his crime. Murder must be properly punished to send a clear warning to the would be murderers that they would be severely punished.
8. I now hereby set aside the death sentence imposed on the Petitioner and substitute the same with a jail term of thirty (30) years from the date of arrest.
Right of Appeal in 14 days.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 19th day of December 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant