[2021] KEHC 9353 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

MISC. CR. APPLICATION NO. 70 OF 2020

DAVID OTIEKA BULUMA..................................................................APPLICANT

-VERSUS-

REPUBLIC........................................................................................RESPONDENT

JUDGMENT

The Petitioner, DAVID OTIEKA BULUMA, has asked the Court to declare that his Constitutional Rights had been breached by the Respondent, when he was convicted and sentenced to serve an unlawful sentence.

1. In the circumstances, the Petitioner asks the court to order that he ought to be re-sentenced afresh.

2. The record of the proceedings shows that the Petitioner was convicted on 3 counts of ROBBERY WITH VIOLENCEcontrary to Section 296 (2)of the Penal Code.

3. The trial court sentenced the Petitioner to Suffer Death as by law prescribed.

4. According to the Petitioner, his constitutional rights were infringed due to the fact that his mitigation was not taken into account, prior to sentencing.

5. He has submitted that when a court hands down;

“…… a sentence to a person, to what

may potentially constitute life

imprisonment (that) infringes on the

rights of such person not to be

subjected to cruel, inhuman or degrading

treatment or punishment.”

6. He went on to submit that because Section 74 (1)of the retired Constitution had outlawed the torture or inhuman treatment to any person, the trial court had violated his constitutional rights.

7. Pursuant to Article 25of the Constitution, the following rights and fundamental freedoms shall not be limited;

“(a) freedom from torture and cruel,

inhuman or degrading treatment

or punishment;

(b) freedom from slavery or servitude;

(c) the right to a fair trial; and

(d) the right to an order of habeas

corpus.”

8. In my considered opinion, the Petitioner has not demonstrated how life imprisonment can be construed as constituting torture or inhuman treatment.

9. In any event, the trial court did not sentence the Petitioner to life imprisonment. He was sentenced to death, as provided for by Section 296 (2)of the Penal Code.

10. In the case of FRANCIS K. MURUATETU & ANOTHER Vs REPUBLIC [2017] eKLR the Supreme Court made it very clear that the Death penalty remains lawful.

11. The Supreme Court held that the imposition of the death sentence was lawful provided that before the trial court handed it down, it had taken into consideration the mitigation put forward by the accused.

12. It was the mandatory nature of the death sentence that was declared unconstitutional.

13. The Supreme Court said that the trial court must assess the appropriateness of the death penalty in relation to the circumstances of the offender and the offence.

14. In effect, each court dealing with the offence of Murder was reminded that it had the judicial obligation to give due consideration to the mitigation of the accused.

15. Provided that the trial court gave due consideration to the mitigating factors, it would still be open to the said court to sentence the accused to death, if the circumstances of the offence and of the offender rendered it appropriate.

16. The Court of Appeal had, in the case of DISMAS WAFULA KILWAKE V REPUBLIC [2018] eKLR, said;

“In principle. We are persuaded that

there is no rational reason why the

reasoning of the Supreme Court (in

Francis Karioko Muruatetu & Another

Vs Republic SC Petition No. 16 of 2015)),

which holds that the mandatory death

sentence is unconstitutional, for

depriving the courts discretion to

impose an appropriate sentence

depending on the circumstances of

each case, should not apply to the

provisions of the Sexual Offences

Act, which do exactly the same thing.”

17. And in the case of DAVID ESOKON SAMWEL Vs REPUBLIC, CRIMINAL PETITION NO. 4 OF 2019 (at Kitale), the Court held as follows;

“It therefore follows that the Muruatetu

decision applies mutatis mutandis to

the provisions of Section 8 (2) of the

Sexual Offences Act, which imposes the

mandatory life imprisonment for the

offence of defilement.”

18. I am of the same considered opinion, that in relation to the offence of Robbery with ViolenceContrary to Section 296 (2)of the Penal Code, the mandatory imposition of the death penalty is unconstitutional.

19. Therefore, I allow the Petition herein, and set aside the original sentence which had been imposed by the trial court.

20. I direct that the Petitioner will now be sentenced afresh, after the court gives due consideration to the mitigating factors in the case.

DATED, SIGNED and DELIVERED at KISUMUThis28thday ofJanuary2021

FRED A. OCHIENG

JUDGE