[2022] KEHC 10787 (KLR)

Chesholei v Republic (Criminal Petition 15 of 2019) [2022] KEHC 10787 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10787 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Petition 15 of 2019

SN Riechi, J

May 12, 2022

IN THE MATTER OF RE-HEARING OF SENTENCE UNDER ARTICLES 19(2), 22(1), 23(1)(3)(d), 19(3), 25(c), 26(1), 27(1), 28, 29, 48, 49(1)(f), 50(1)(2)(4), 159(1) AND 165(3)(a)(b) OF THE CONSTITUTION

Between

Rashid Siyoi Chesholei

Petitioner

and

Republic

Respondent

Judgment

1. The petitioner herein together with Emmanuel Chebaskwony Cepskor were charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars being that on the night of 5th and 6th December 2008 at Grandma Hotel in Kanduyi Shopping Centre in Bungoma County jointly with others not before court murdered Peter Naibei Chebaskwony. They pleaded not guilty whereupon the matter proceeded the prosecution calling a total of 12 witnesses. Subsequently, the court (Ali-Aroni J.) convicted and sentenced them to suffer death.

2. Dissatisfied, the two appealed to the Court of Appeal vide Criminal Appeal No.58 of 2017 where the learned judges of Appeal; Githinji, Okwengu and Mohammed JJ.A upheld both the conviction and the sentence.

3. Having exhausted the appellate avenues and in light of the Supreme Court’s decisional authority in Francis Karioko Muruatetu & anothervRepublic & 5 others[2017] eKLR, the petitioner now seeks re-sentence hearing. He states that he was convicted and sentenced to suffer death on 2/10/2015 where he has remained in prison since then. He states that the sentence was later commuted to life imprisonment by His Excellency the president on 20/10/2016.

4. The petition was disposed of by way of written submissions. Both parties complied and the same have been considered. The court notes from the petitioner’s submissions that in a re-sentencing hearing, the petitioner or the applicant ought not contest the propriety of the conviction or the sentence meted. The petitioner is rather limited to mitigating factors the court ought to consider.

5. It is no doubt the penalty provided for under section 204 of the Penal Code upon conviction on a charge under the section is a death. The supreme court however in the Muruatetu case(supra) held at paragraph 48 and 49 that;Section 204 of the Penal Codedeprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under articles 25 of the Constitution; an absolute right.With regard to murder convicts, mitigation is an important facet of fair trial. In Woodson as cited above, the Supreme Court in striking down the mandatory death penalty for murder decried the failure to individualize an appropriate sentence to the relevant aspects of the character and record of each defendant, and consider appropriate mitigating factors. Thecourtwas of the view that a mandatory sentence treated the offenders as a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death thereby dehumanizing them.

6. Similarly, the court gave guidelines to be considered when meting out sentences such as; age of the offender; being a first offender; whether the offender pleaded guilty; character and record of the offender; commission of the offence in response to gender-based violence; remorsefulness of the offender; the possibility of reform and social re-adaptation of the offender; and or, any other factor that the court considers relevant.

7. From the record, there is no evidence that the petitioner tendered any mitigation since the prosecutor indicated that the penalty is mandatory. Since the decision in Muruatetu (supra), the mandatory nature of the sentence has been found unconstitutional. It is this same court which passed the sentence and therefore the petition is properly before the court.

8. The court notes that the petitioner and his accomplice were charged on 28/1/2009. All through the trial, the remained in custody until judgement was read on 2/10/2015. The prosecutor indicated that the petitioner was a first-time offender. This is a fact that the court ought to consider. The court takes cognizance of the fact that this is a capital offence which took away the life of the petitioner’s friend.

9. The penalty as provided by the statute is death. It remains so to date as Muruatetu only stated that it is the mandatory nature of death penalty which was unconstitutional. The death penalty therefore remains legal.

10. The petitioner informs the court that he is currently not under death sentence as the same was commuted to life imprisonment by His Excellency the President. There is therefore no death sentence on him that this court can set aside, as he is not under any. I therefore find no merit in this petition and dismiss the same.

DATED AT BUNGOMA THIS 12TH DAY OF MAY, 2022S. N. RIECHIJUDGE