[2022] KEHC 9915 (KLR)

Cheruiyot v Republic (Miscellaneous Criminal Application E021 of 2021) [2022] KEHC 9915 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9915 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Criminal Application E021 of 2021

RL Korir, J

July 13, 2022

(From the original file no. 19 of 2015)

Between

Peter Cheruiyot

Applicant

and

Republic

Respondent

Ruling

1. The Applicant (then Accused) was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 Laws of Kenya. Upon trial, he was convicted of the murder of his wife and sentenced to death by Ongundi J. on 3rd December 2015.

2. The Applicant now seeks to be resentenced. His Application filed in Court on 16th February 2021 is premised on Articles 20 (3), (4), 21 (1) (3) & 22 (1) (3) & (4) of the Constitution of Kenya. His main prayer is that the Court reviews and reduces his sentence which has since been commuted to life imprisonment.

3. The Application was canvassed through written submissions. In his undated submissions, the Applicant submitted that he was remorseful for the offence and had sought forgiveness from the family of the victim. He also prayed that he be released to look after his three young children who now had no parent. He further submitted that during the period in custody, he had reformed and had become a born again Christian believer, having taken advantage of the prison programs and skills offered there. That he had undertaken Bible courses and carpentry. It was his submission that he the incident occurred as a result of use of alcohol and mistrust issues between him and the victim who was his wife but he has since had time to reflect. Finally, he submitted that he was a first offender and he was willing to continue being a law abiding citizen, and that the Court should consider the 9 years that he had already spent in prison. He cited the case of Francis Karioko Muruatetu & Another vs. Republic, Supreme Court Petition No. 15 of 2015, Titus Ngamu Musila alias Katitu, Criminal Case No. 78 of 2014 and section 333 (2) of the Criminal Procedure Code in support of his submissions.

4. In his oral submissions, counsel for the Respondent submitted that the Court should be guided by the decision in Muruatetu at page 9 which outlined the guidelines to be followed by the courts during resentencing in murder cases.

5. This Court called for a Probation Officer’s Report which was dated and filed on 24th November 2021. The said Report contained a comprehensive Victim Impact Statement as directed by the Court.

6. On 16th December 2021, this Court deferred the ruling on sentence upon the request of the Applicant to be allowed to seek reconciliation with his wife’s family. On 27th June 2022, the Applicant presented before Court a Prison Recommendation Report by the Officer in Charge dated 3rd January 2022. He also informed the Court that his efforts to seek reconciliation with the victim’s family were unfruitful and therefore if the Court granted his prayers, he would relocate and raise his family from a different location.

7. In the Supreme Court decision of Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, it was held that the mandatory death sentence provided by section 204 of the Penal Code was unconstitutional as it fettered the discretion of the trial court to mete out appropriate sentences upon proper consideration of the circumstances of a case and the mitigating factors. The Court stated thus: -“69. 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”.

8. Subsequently, in its Directions issued on 6th July 2021 in the same matter, Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR {KESC 31, KLR}, the learned bench outlined the guidelines at paragraph 18 as follows:-“vii.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;(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)The manner in which the offence was committed on the victim;(g)The physical and psychological effect of the offence on the victim’s family;(h)Remorsefulness of the offender;(i)The possibility of reform and social re-adaptation of the offender;(j)Any other factor that the court considers relevant.”

9. In the judgment dated 3rd December,2015, Ongundi J. noted that the Applicant inflicted injuries on the head of his wife evidenced by the deep cut wound on the side of her face, fracture of the skull and severe hemorrhage into the brain which resulted in cardiac arrest. He was then seen by his 7-year old son dragging his wife’s body outside the house. It was his son’s testimony that their mother never returned home that night but was found the next morning hanging on a tree dead.

10. The circumstances of this case are not only horrendous but harrowing particularly to the children who were eye witnesses to the cruel murder. The manner in which the Accused person (now Applicant) killed the victim and his subsequent actions of hanging her on a tree constitute aggravating circumstances.

11. I have read the Pre-Sentence Report and noted that the community is still hostile towards the Applicant and the possibility of harm was high. The victim’s mother is also still very bitter about the death of her daughter while the Applicant’s son neither wants to see him nor go back to their home. The families of the Applicant and the victim have also been unable to reconcile. It was the conclusion of the Probation Officer that the home environment was not conducive for the Accused person.

12. I have considered the arguments of the Applicant in his submissions. It is commendable that the 10 years he has spent in prison have had a positive impact on his character in that he has reformed his ways, received Jesus Christ as his personal savior and learned carpentry as a new skill. Indeed, this is in line with the purposes of sentencing as outlined by the Judiciary Sentencing Policy Guidelines, 2016 page 15, paragraph 4. 1 which provides: -“Sentences are imposed to meet the following objectives:“i.Retribution: To punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: To deter the offender from committing a similar offence subsequently as well as discourage other people from committing similar offences.iii.Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.iv.Restorative justice: To address the needs arising from criminal conduct such as loss and damages.v.Community protection: To protect the community by incapacitating the offender.vi.Denunciation: To communicate the community’s condemnation of the criminal conduct.(emphasis added)

13. It is however not lost on this Court that the trial court properly considered the facts of this case and exercised its discretion in passing the sentence which it did. In Bernard Kimani Gacheru vs. Republic [2002] eKLR, the Court of Appeal stated thus: -“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

14. In mitigation, Counsel for the Applicant stated that the Accused was 35 years old with 3 children who were on their own, that he was remorseful and that he was greatly affected by the loneliness of the children and therefore a custodial sentence punish the children. The Accused pleaded for leniency. The learned Judge in passing sentence stated as follows: -“I have heard and considered the mitigation. However, section 204 of the Penal Code only provides one sentence for this kind of offence. The accused will therefore suffer death as prescribed by the law.”

15. From the above, it is clear that the hands of the trial Judge were tied and it was no wonder he was unable to pass any other sentence aside from what was prescribed by the law. In S vs. Malgas 2001 (2) SA 1222 SCA 1235 para 25 the court stated thus:-“What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the legislature’s view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.”

16. This Court is cognizant of the circumstances in which the trial court imposed the sentence it did but also appreciates that the said circumstances may have changed during the period of incarceration of an accused person especially with the advent of the Muruatetu Guidelines. The circumstances of an accused person may also have changed as may be evidenced by a pre-sentence or prison report. This was the position taken in Vinter and others vs. the United Kingdom (Applications Nos. 66069/09, 130/10 and 3896/10) in which the Court held that:-“It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.”(emphasis added).

17. Similarly, in Yussuf Dahar Arog vs. Republic [2007] eKLR Ojwang, J (as he then was) expressed himself thus:“Such is of course, a maximum sentence and within that constraint, the court has a wide discretion which it exercises on judicial principles. Such principles would I believe, take into account the ordinary span of life of a human being, the general circumstances surrounding the commission of the offence, the possibility that the culprit may reform and become a law-abiding member of the community, the goals of peace and mutual tolerance and accommodation among people – those who are injured and those who have occasioned injury.”

18. However, it must be made clear that the Court is not obligated to reduce a sentence just because the circumstances of a case may have changed or an Applicant has presented favourable reports or recommendations.

19. In the present case, I have, as already stated, considered that the Applicant has reformed and had acquired commendable skills while in prison. In his plea for a non-custodial sentence, he told this Court that his children were suffering. It emerged from the Social Inquiry Report however that his children were still bitter with him and would not like to live with him at all. It also emerged that the community remained hostile to him making a non-custodial sentence not tenable.

20. The Applicant has indeed prayed for the leniency of the Court. This Court must however balance the scales of justice and after taking into consideration the aggravating circumstances of this case, I have come to the conclusion that the justice of this case demands a deterrent sentence. Though the Applicant is reformed, I decline to reduce his sentence so as to deter any like-minded persons from brutally taking the life of their spouse. The Applicant shall continue to serve his life sentence.

21. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 13TH DAY OF JULY, 2022. ...............................R. LAGAT-KORIRJUDGERuling delivered in the presence of ­­­­­­­­­­­­­­­­­­­Mr. Murithi for the State, The Applicant present in person and Kiprotich (Court Assistant).