[2021] KEHC 7615 (KLR)
The court found that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional, necessitating resentencing. The court considered the gravity and brutality of the offence, the presence of the deceased's young son during the murder, and the lack of provocation as...
Source-derived case information.
- Citation
- [2021] KEHC 7615 (KLR)
- Parties
- Petitioner: Ezekiel Kirimi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 15 of 2020
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Original Sentence
- Outcome
- Petition for resentencing allowed; death sentence set aside; petitioner re-sentenced to forty years' imprisonment from 24th October, 2013.
- Judges
- TW Cherere
- Legal Topics
- Murder Sentencing, Resentencing Guidelines, Mandatory Death Penalty, Mitigation Factors, Custody Period Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Kirimi
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Original Sentence
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision declaring the mandatory death sentence unconstitutional.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and time already served.
Ratio Decidendi
The court found that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional, necessitating resentencing. The court considered the gravity and brutality of the offence, the presence of the deceased's young son during the murder, and the lack of provocation as aggravating factors. The court also considered the petitioner's remorse and the period already served in custody as mitigating factors. Applying the Sentencing Policy Guidelines and section 333(2) of the Criminal Procedure Code, the court determined that a sentence of forty years' imprisonment from the date of conviction was appropriate, balancing the need for punishment,...
Court Disposition
Petition for resentencing allowed; death sentence set aside; petitioner re-sentenced to forty years' imprisonment from 24th October, 2013.
Orders
- The petitioner is re-sentenced to forty (40) years' imprisonment from 24th October, 2013.
- The period already spent in custody prior to conviction shall be taken into account.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
(CORAM: CHERERE- J.)
CRIMINAL PETITION NO. 15 OF 2020
BETWEEN
EZEKIEL KIRIMI.................................PETITIONER
AND
REPUBLIC..............................................RESPONDENT
JUDGMENT
1) On the 18th December, 2007, the Petitioner without any provocation murdered FKM by cutting him on the neck, chest, head, amputating his left arm at the elbow and fracturing his mandible and orbit. The offence was committed in the presence of the deceased’s 13-year-old son.
2) The court found Petitioner guilty and sentenced him to suffer death.
3) Petitioner prays for resentence on the ground that he is remorseful and has been in custody for 13 years.
4) Ms. Mbithe, learned counsel for the state submitted that the sentence imposed on the Petitioner was constitutional and urged the court to uphold it.
Analysis and Determination
5) Death is a lawful sentence for murder. The Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLRdeclaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory minimum and maximum sentences.
6) I have considered The Sentencing Policy Guidelines, 2016 and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
7) Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court is entitled to take into account the period the Petitioner has spent in custody in determining the sentence. The court record shows that the petitioner has served about 8 years and was in custody for 3 years before his conviction in 2013.
8) The Petitioner did not annex any certificate to demonstrate that he had undertaken any course as a means of reformation. He however submitted that he is remorseful and regrets his actions.
9) I have considered the mitigating and aggravating factors. It is not lost to this court that the Petitioner without any provocation, vicious attacked deceased in the presence of deceased’s 8-year-old son and literally mutilated some of his body parts causing him death.
10) The psychological effect of the Appellant’s actions on the child cannot be underestimated and will leave with him for the rest of his life.
11) Whereas no length of sentence can restore life, I re-sentence Petitioner to forty (40) years’ imprisonment from 24th October, 2013 when he was convicted which time in my considered view will give him time to reflect on his actions and come out of prison a better person.
DELIVERED AT MERU THIS 22ND DAY OF APRIL 2021
T. W. CHERERE
JUDGE
T.W.Cherere
In the presence of- Court Assistant - Kinoti Petitioner - Present For the State - Ms. Mbithe