[2021] KEHC 4616 (KLR)
The court held that the Muruatetu decision applies only where the law imposes mandatory or minimum sentences that remove judicial discretion. In the petitioner’s case, the trial judge exercised discretion in sentencing her to 12 years for manslaughter. Therefore, the petitioner is not entitled to resentencing under...
Source-derived case information.
- Citation
- [2021] KEHC 4616 (KLR)
- Parties
- Applicant: Doris Kawira Zakayo; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 69 of 2019
- Procedural Posture
- Constitutional Petition / Judgment on Resentencing
- Outcome
- petition dismissed
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Manslaughter, Judicial Discretion, Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Doris Kawira Zakayo
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment on Resentencing
Legal Issues
- 1 Whether the petitioner is entitled to resentencing under the Supreme Court decision in Muruatetu.
- 2 Whether the original sentence for manslaughter was imposed with judicial discretion.
Ratio Decidendi
The court held that the Muruatetu decision applies only where the law imposes mandatory or minimum sentences that remove judicial discretion. In the petitioner’s case, the trial judge exercised discretion in sentencing her to 12 years for manslaughter. Therefore, the petitioner is not entitled to resentencing under Muruatetu. If dissatisfied with the sentence, her remedy lies in an appeal to the Court of Appeal, not a resentencing application before the High Court. The petition for resentencing was accordingly dismissed.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 69 OF 2019
DORIS KAWIRA ZAKAYO.................................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION....................................................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein Doris Kawira Zakayo has filed this petition requesting this court to consider resentencing her pursuant to the decision of the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR.
2. The Petitioner had been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in Mombasa HCRCC 58 2012. However, the learned trial judge found the Petitioner guilty of the offence of Manslaughter, convicted her, and sentenced her to serve 12 years in prison.
3. This petition seeks re-sentencing on the basis of the Supreme Court decision in Muruatetu case No. 15 &16 of 2015.
Analysis and Determination
3. The Muruatetu case established the principle that any law that takes away or limits court’s discretion in sentencing is unconstitutional. With that decision courts, now exercise discretion where the law has provided for a mandatory or minimum sentence. However, I note that in Mombasa HCRCC 58 2012, the petitioner was sentenced to 12 years imprisonment and she has been in prison for close to 8 years and 8 months. It is noteworthy that by sentencing the petitioner to 12 years imprisonment for manslaughter, the judge exercised discretion. In such case, the petitioner may only appeal to the Court of Appeal if she feels aggrieved by the sentence. She should not come back to this court on the pretext of Muruatetu decision.
4. In the upshot, I dismiss the petition herein for re-sentencing.
It is so ordered.
That is the Judgment of the court.
Dated, Signed and Delivered at Mombasa this 29th day of July, 2021.
E. K. O. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant