[2024] KEHC 7348 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence is unconstitutional and the High Court has jurisdiction to review and resentence persons previously subjected to such sentences. The petitioner demonstrated remorse and presented mitigating factors, including...
Source-derived case information.
- Citation
- [2024] KEHC 7348 (KLR)
- Parties
- Applicant: Kiprop Kerich Ezra; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E027 of 2023
- Procedural Posture
- Criminal Petition / Resentencing Application After Conviction and Commutation of Death Sentence to Life Imprisonment
- Outcome
- Application for resentencing allowed. Life imprisonment set aside. Petitioner sentenced to 20 years from date of original sentence.
- Judges
- JK Sergon
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Resentencing Jurisdiction, Mitigation Factors, Rehabilitation Principle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiprop Kerich Ezra
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing Application After Conviction and Commutation of Death Sentence to Life Imprisonment
Legal Issues
- 1 Whether the High Court has jurisdiction to review and resentence a petitioner previously sentenced to a mandatory death penalty now commuted to life imprisonment.
- 2 Whether the mandatory death sentence imposed on the petitioner should be set aside and a lesser sentence imposed in light of the Supreme Court decision in Muruatetu.
- 3 What is the appropriate sentence for the petitioner considering the circumstances, mitigation, and aims of sentencing.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence is unconstitutional and the High Court has jurisdiction to review and resentence persons previously subjected to such sentences. The petitioner demonstrated remorse and presented mitigating factors, including participation in rehabilitation programs. The court found that the aims of sentencing, including rehabilitation and proportionality, required a reconsideration of the sentence. Consequently, the court set aside the life imprisonment sentence and imposed a determinate sentence of 20 years from the date of the original sentence, considering both the seriousness of the offence and the...
Court Disposition
Application for resentencing allowed. Life imprisonment set aside. Petitioner sentenced to 20 years from date of original sentence.
Orders
- The application for resentencing is allowed.
- The life imprisonment sentence is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
Ezra v Republic (Criminal Petition E027 of 2023) [2024] KEHC 7348 (KLR) (19 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7348 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Petition E027 of 2023
JK Sergon, J
June 19, 2024
Between
Kiprop Kerich Ezra
Petitioner
and
Republic
Respondent
Ruling
1. The petitioner herein was charged for the offence of murder contrary to section 203 and section 204 of the Penal Code vide Kericho High Court Criminal Case No. 4 of 2012. The particulars of the offence being that on 12th day of January, 2012 at Mortgage Estate in Kericho District within the Rift Valley Province murdered Zeddy Chemutai.
2. The petitioner herein was charged for the offence of attempted suicide contrary to section 226 of the Penal Code vide Kericho High Court Criminal Case No. 4 of 2012. The particulars of the offence being that on the 12th day of January, 2012 at Mortgage Estate in Kericho District within the Rift Valley Province, attempted to kill himself by stabbing himself on the throat using a kitchen knife.
3. The petitioner was convicted for both counts and sentenced to a mandatory death sentence which was subsequently commuted to life imprisonment.
4. The petitioner being aggrieved with the conviction and sentence meted out by the trial court, appealed to the Court of Appeal, however, the petitioner informed this Court that the appeal was yet to be heard and determined at the time he lodged the instant application and further that he had withdrawn the appeal.
5. It is against such background that the petitioner filed the instant application for resentencing in light of the decision of Francis Karioko Muruatetu and Another v Republic (Supreme Court Petition No. 15 of 2015) in which the apex court declared that the mandatory death sentence was unconstitutional. He urged this court to review his sentence and grant a more lenient sentence that is informed by mitigation and the unique facts and circumstances of his case.
6. The parties filed written submissions which this Court has considered.
7. The petitioner submitted that he was remorseful, has undergone numerous rehabilitation programs and was therefore seeking to be handed a lesser sentence, that is in line with the aims of sentencing.
8. The petitioner submitted that he seeks a chance to address this Court on the mitigating circumstances, which would be used to mete out an appropriate sentence. The petitioner reiterated that the sentence imposed needs to take into account the need to accord the petitioner an opportunity and a chance to be rehabilitated in line with article 10 (3) of the International Convention on Civil and Peoples’ Rights (ICCPR) which sets out the essential aims of imprisonment as “...shall be to reform the offender and promote social rehabilitation.”. The petitioner cited the case of Douglas Muthaura Ntoribi v Republic [2014] eKLR where the court stated as follows; “A good working prison should be able to reform convicts. There is no legal research which leads to the conclusion that capital offence cannot be reformed.”
9. The prosecution, being opposed to the application for resentencing, submitted that the victim was at the prime of her life at the time of her demise. The prosecutor maintained that the many stab wounds inflicted on the deceased clearly showed that the petitioner was intent on killing the victim. The prosecution therefore urged this Court to uphold the life sentence.
10. The High Court is clothed with the jurisdiction to entertain sentence review applications by virtue of Article 165 (3) (b) of the Constitution, which empowers the High Court with jurisdiction to hear and determine applications for redress of a denial, violation or infringement of or threat to, a right or fundamental freedom in the Bill of Rights. After a careful perusal of the mitigation submissions filed by the applicant, I find that the applicant is basically remorseful post-conviction and sentence.
11. The Applicant therefore seeks for leniency and beseeches this Court to mete out an appropriate sentence.
12. Having considered all the above, I find that indeed this court has jurisdiction to entertain the application based on the decision of the Supreme Court on Muruatetu, supra. The petitioner has given his mitigating factors. In the result, the application is allowed. I hereby set aside the life imprisonment which was imposed against him when his death penalty was commuted to life. The applicant is hereby sentenced to 20 years from the date of Sentence
13. Orders to issue accordingly.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 19TH DAY OF JUNE, 2024. ………………………J.K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – TaslimApplicant – Present in Person