[2024] KEHC 11093 (KLR)

Chepyator v Republic (Criminal Petition 51 of 2019) [2024] KEHC 11093 (KLR) (20 September 2024) (Ruling)

Neutral citation: [2024] KEHC 11093 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Petition 51 of 2019

RN Nyakundi, J

September 20, 2024

IN THE MATTER OF RESENTENCING HEARING OF SENTENCE UNDER ARTICLE 229(3), 25, 26, 27(1), 28, 29(A), 160(1), 159(1), 165(3) (b) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTION 261 OF THE CRIMINAL PROCEDURE CODE, CAP 75 LAWS OF KENYA AND IN THE MATTER OF ALL OTHER PROVISIONS OF THE LAW

Between

John Kipsesat Chepyator

Applicant

and

Republic

Respondent

Ruling

Introduction 1. The Petitioner herein was charged and convicted for the offence of murder contrary to section 203 as read together with section 204 of the Penal Code in High Court Criminal Case No 19 of 2007 at Eldoret High Court and sentenced to death.

2. The Petitioner lodged an appeal to the Court of Appeal at Eldoret vide C.O.A No. 53 of 2018 whereby his appeal was dismissed in its entirety and the court upheld the conviction of the appellant and the sentence of death imposed hence the Petitioner has no pending appeal.

3. What is pending before me for determination is a Notice of Motion Application dated 13th August 2021 where the Petitioner is seeking the following orders:a.Spentb.That the Petitioner be admitted waiver and the applicable fees not provided as he is serving death sentence.

4. The Application is based on the grounds on the face of it among others:a.That following the decision of the Supreme Court of Kenya in Francis Muruatetu Karioko and Anor (supra) eKLR delivered on the 14th December 2017, and the Supreme Court of Kenya guidelines released recently (annexed herein) declared unconstitutional the mandatory nature of the death sentence.b.That the objectives of the sentencing include:a.To punish the offender for his misdeeds (retribution)b.Communicate community’s condemnation and denunciation of the criminal conduct.c.Rehabilitation of the offender as well as protection of citizen.c.That the circumstances in which the incident took place are clear and by taking into account the pre-trial period from 2007 and subsequent imprisonment that period of confinement may constitute adequate punishment having had a long time to reflect on his life and fate being remorseful for the unfortunate murder of his wife thus deserve a remedy in the form of resentencing afresh in the spirit of what the Supreme court of Kenya held that death sentence is not ideal.d.That he is a reformed person, a Christian and currently team leader of the Naivasha main prison catholic choir preaching against crime and ready for re-integration, as while at prison the Petitioner took the imprisonment positively and took advantage of opportunities available in prison to enroll in vocational trainings namely carpentry, theological course and masonry which shall be replicated back home upon discharge were his petition be allowed. That he will be beneficial out of prison being remorseful to the victims’ family and the community at large without prejudice.e.That the Petitioner has annexed mitigating factors by way of written submissions.

5. The application is supported by the affidavit sworn by John Kipsesat Chepyator dated 13th August 2021 where he deposes as follows:a.That I was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.b.That upon full trial I was sentenced to suffer death in the high court criminal case no 19 of 2007 on 15th May 2017 by Hon. Justice G.k. Kimondoc.That I have exhausted all avenues of appeal as my court of appeal no. 53 of 2018 was dismissed for lack of merit.d.That I am remorseful, repentant and a reformed person and humbly pray for resentencing re-hearing in reliance with the decision by the Supreme Court in Muruatetu case in conformity with the recent guidelines released and adopted.e.That I have trained in theological case, masonry and tailoring ready for re-integration.f.That this Hon. Court has unlimited original powers and discretion to handle an application of this nature in reliance with the guidelines so issued by the Supreme Court.g.That I have brought the amended petition without undue delay.

Analysis and Determination 6. In deciding this application, I have perused and considered the judgment in Court of Appeal at Eldoret vide C.O.A No. 53 of 2018 and High Court at Eldoret in in High Court Criminal Case No 19 of 2007 which relate to the same case. I have also considered the application and the mitigation submissions by the applicant. The issue manifest for determination is:

Whether the sentence review is merited, cognizant of the fact that his appeal was summarily dismissed by this court and the Court of Appeal. 7. Re-sentencing is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review sentence. The court will ordinarily check the legality or propriety or appropriateness of the sentence. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors, and the objects of punishments. In re-sentencing proceedings, conviction is not in issue.

8. It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the constitution ,A further leapfrog development; under article 50(2)(p) of the Constitution:50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing

9. I note that the Petitioner’s application is about the death sentence imposed by this Honourable Court in the high court criminal case no 19 of 2007 on 15th May 2017 by Hon. Justice G.k. Kimondo. In this regard, I am in agreement with the position taken by Hon. Majanja, J. in John Gitonga alias Kadosi vs. Republic (supra), that:“...this petition is one for resentencing not clemency. The petitioner has already had the benefit of his death sentence commuted to life imprisonment by His Excellency the President under the Power of Mercy conferred under Article 133 of the Constitution. In this case, the court is being called upon to re-consider the facts as they existed at the time of sentencing and impose an appropriate sentence in light of the fact that the mandatory death penalty has been declared unconstitutional."

10. The sentence re-hearing has been necessitated by the decision of the Supreme Court in the Muruatetu Case wherein the Supreme Court declared unconstitutional the mandatory nature of the death sentence. That decision was made on 14 December 2017, long before the dismissal of the applicant’s appeal to the Court of Appeal. Here is what the Supreme Court had to say in regard to the death sentence:“(58)To our minds, any law or procedure which when executed culminates in termination of life, ought to be just, fair and reasonable. As a result, due process is made possible by a procedure which allows the Court to assess the appropriateness of the death penalty in relation to the circumstances of the offender and the offence. We are of the view that the mandatory nature of this penalty runs counter to constitutional guarantees enshrining respect for the rule of law.(59)We now lay to rest the quagmire that has plagued the courts with regard to the mandatory nature of Section 204 of the Penal Code. We do this by determining that any court dealing with the offence of murder is allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence. To do otherwise will render a trial, with the resulting sentence under Section 204 of the Penal Code, unfair thereby conflicting with Articles 25 (c), 28, 48 and 50 (1) and (2)(q) of the Constitution.”

11. The Supreme Court then added at paragraph 69 of its Judgment that:“Consequently, we find that Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment."

12. As a corollary to the Muruatetu Case, the Court of Appeal made its pronouncement in respect of Section 296(2) of the Penal Code, which has a similar penalty, in William Okungu Kittiny vs. Republic (supra) and held as follows:“...The appellant was sentenced to death for robbery with violence under Section 296 (2). The punishment provided for murder under Section 203 as read with Section 204 and for robbery with violence and attempted robbery with violence under Section 296 (2) and 297 (2) is death. By Article 27(1) of the Constitution, every person has inter alia, the right to equal protection and equal benefit of the law. Although the Muruatetu's case specifically dealt with the death sentence for murder, the decision broadly considered the constitutionality of the death sentence in general...From the foregoing, we hold that the findings and holding of the Supreme Court Particularly Paragraph 69 applies mutatis mutandis to Section 296 (2) and 297 (2) of the Penal Code. Thus the sentence of death under Section 296(2) and 297(2) of the Penal Code is a discretionary maximum punishment. To the extent that Section 296(2) and 297(2) of the Penal Code provides for mandatory death sentence the Sections are inconsistent with the Constitution...as the Supreme Court did not outlaw the death penalty. It follows that the main ground of appeal – the unconstitutionality of Section 204, 296(2) and 297(2) of the Penal Code on the death sentence fails.”

13. In the premises, what is required of the Court is to consider what would have been an appropriate sentence in the circumstances. The approach suggested at Paragraph 23. 9 of the Judiciary Sentencing Guidelines, which are guidelines formulated to ensure objectivity and uniformity in sentencing, is that:“The first step is for the court to establish the custodial sentence set out in the statute for that particular offence. To enable the court to factor in mitigating and aggravating circumstances/factors, the starting point shall be fifty percent of the maximum custodial sentence provided by statute for that particular offence. Having a standard starting point is geared towards actualizing the uniformity/impartiality/consistency and accountability/transparency principles set out in paragraphs 3. 2 and 3. 3 of these guidelines. A starting point of fifty percent provides a scale for the determination of a higher or lower sentence in light of mitigating or aggravating circumstances.

14. Additionally, in the Muruatetu Case, the Supreme Court proffered the following guidelines for consideration in respect of a sentence re-hearing:(a)age of the offender(b)being a first offender(c)whether the offender pleaded guilty(d)character and record of the offender(e)commission of the offence in response to gender-based violence(f)remorsefulness of the offender(g)the possibility of reform and social re-adaptation of the offender(h)any other factor that the court considers relevant.

15. From the record, the circumstantial evidence produced at this Honourable includes the fact that the petitioner came to the offices of PW1 and PW5 holding a blood stained panga. Earlier on PW1 had received an anonymous call informing him that the petitioner was killing his wife by cutting her with a panga and that this was happening in mzee Kipkuto’s farm. Acting on the information, and upon arresting the petitioner, PW5 proceeded to the scene where he had been informed the body was and found the body of the deceased had cuts on the neck, back and hands. Upon post mortem being undertaken on the body by PW4, he observed that the deceased had multiple cut wounds on the right arm, back, neck and her spine had been severed as well as her hands. He opined the cause of death as resulting from multiple cut wounds. The injuries appear to have been inflicted with a sharp object. No doubt a panga is a sharp object. The petitioner had such a panga.

16. I note that the Court of Appeal in this case stated that, “In this case PW4 while conducting the post mortem noted that externally, the deceased had multiple cut wounds on the back and both sides of the neck. Her spine had been severed. She had deep cut wounds on the left side of the head with resultant fracture. Both hands were completely severed. It requires no gain saying that the deceased was killed in the most horrid, heinous, gory and painful manner. Nobody needs to die in this manner. We think therefore that the sentence of death imposed on the appellant was commensurate to the offence as committed by the appellant. We see no reason to interfere with it. Accordingly, we uphold the conviction of the appellant and the sentence of death imposed. The appeal therefore fails and is dismissed.”

17. I therefore find the following decisions more comparable for purposes of re-sentencing:

18. In Douglas Muthaura Ntoribi vs. Republic (supra) the Appellant had been sentenced to death for the offence of robbery with violence under Section 296(2) of the Penal Code. The death sentence was set aside on appeal and substituted with 15 years’ imprisonment on 25 January 2018. The Court took into account that the Appellant therein had been in custody from the time of his arrest on 10 June 2004, and had therefore been incarcerated for 14 years.

19. (b)In the case of Robert Mutashi Auda vs. Republic, Nairobi Criminal Appeal No. 247 of 2014, the Appellant had been convicted on a charge of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. His appeal to the High Court against conviction and sentence was unsuccessful. In a second appeal, the Court of Appeal was urged to consider the sentence and the mitigating factors in accordance with the Muruatetu Case. The view of the Court of Appeal on the matter was thus:“We have considered the said mitigation and sentiments of the prosecution counsel. We have considered the circumstances in which the offences were committed and noted that there were no injuries inflicted on the victims. We also appreciate the fact that the appellant has already served 13 years in prison which in our view is sufficient retribution on his part. Taking all these issues into account, we are persuaded to interfere with the death sentence imposed on the appellant and reduce the same to the term already served. The appellant’s appeal therefore succeeds in part only as far as the sentence is concerned as the conviction remains undisturbed. We order that the appellant be set at liberty unless he is otherwise lawfully held."

20. I note that the applicant in his mitigation stated that he is a reformed person, a Christian and currently team leader of the Naivasha main prison catholic choir preaching against crime and ready for re-integration, as while at prison he took the imprisonment positively and took advantage of opportunities available in prison to enroll in vocational trainings namely carpentry, theological course and masonry which shall be replicated back home upon discharge were his petition be allowed. That he will be beneficial out of prison being remorseful to the victims’ family and the community at large without prejudice.

21. Having given due consideration to the mitigation, and after taking into account the period which the Petitioner spent in custody prior to his conviction, I now hereby re-sentence the Petitioner to 25 Years imprisonment. The said sentence shall run from the date of arrest. The same to run as credit under Section 333(2) of the CPC.

DATED SIGNED AND DELIVERED AT ELDORET, THIS 20TH DAY OF SEPTEMBER 2024……………………..…………….R. NYAKUNDIJUDGEJohn Kipsesat Chepyator for the ApplicantMark Mugun for the Director of Public Prosecution