[2022] KEHC 13827 (KLR)

Gathiaka & 4 others (Criminal Petition 10 of 2020) [2022] KEHC 13827 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13827 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Petition 10 of 2020

JM Ngugi & HK Chemitei, JJ

October 6, 2022

IN THE MATTER OF ARTICLES 22, 23, 50(1), 50(2) (P), 159, 165 (3)(9) AND 259 OF THE NEW CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTION 363 OF THE CRIMINAL PROCEDURE CODE

In the matter of

Bernard Gathiaka

1st Applicant

John Mzee Mutuu

2nd Applicant

David Kinyagia

3rd Applicant

Erick Kipkirui

4th Applicant

John Karanja Njuguna

5th Applicant

Judgment

1. The five applicants were charged with the offence of murder contrary to section 203 ad read with section 204 of the Penal Code in Nakuru Criminal Case No 42 of 2010. They were alleged to have, with malice aforethought, killed Clement Muguimi at Kenya Nut Farm Morendat in Naivasha district within the Rift Valley province, jointly with others not before court.

2. After a fully-fledged trial, the learned Judge Anyarra-Emukule convicted the five applicants of the offence in a judgment dated December 20, 2013. This judgment was given when the prevailing decisional law on the mandatory nature of the death sentence for murder had been stipulated in Godfrey Ngotho Mutiso v R [2010] eKLR. The position was to the effect that the mandatory death penalty was unconstitutional to the extent that it interfered with judicial discretion to fashion appropriate sentence. The Godfrey Ngotho Mutiso case, was, of course, later on overturned by a five-judge bench of the Court of Appeal in James Njuguna Mwaura & 2 Others v R[2013] eKLR.

3. Suffice it to say, though, that by the time the trial of the five applicants herein was concluded, Godfrey Ngotho Mutiso was the prevailing jurisprudential position.

4. Consequently, Anyarra-Emukule J scheduled the case for sentence hearing. The applicants filed detailed submissions in mitigation. The learned Judge carefully considered the submissions and rendered himself thus:I have considered the mitigation statement by each of the accused, and I treat their statements seriously, and being youth, I sympathize with each and every one of them. They, however, committed a terrible offence. They unlawfully took away the life of Clement Muguimi, who was doing nothing more than his duty to guard his employer’s property upon which these accused and others were trespassing with bravado, threats which ended in the death of Clement Muguimi….Taking into account that the accused may have been led by youth bravado, and the mob of which they were part, and taking into account that the accused have been I remand for over three years, I sentence each of the accused to twenty years imprisonment to commence from the date of their arrest and detention in prison.

5. It is readily obvious that after due mitigation, the learned Judge sentenced each of the accused person to twenty years imprisonment.

6. The applicants were dissatisfied with the conviction and sentence. They appealed to the Court of Appeal. They later on withdrew their appeals. So, they are each serving the sentence of 20 years imprisonment imposed by Anyarra-Emukule J.

7. However, in 2017, our jurisprudence changed yet again. After the brief stint of James Njuguna Mwaura Case holding sway as the jurisprudential position, the Supreme Court overturned it in Francis Karioko Muruatetu & Another v Republic [2017] eKLR. In the Muruatetu case, the Supreme Court outlawed mandatory death penalty for murder as unconstitutional and struck down section 204 of thePenal Code to the extent that it prescribed mandatory death sentence upon conviction for murder. The Muruatetu case was with respect to the death penalty and it permitted re-sentencing for individuals who had been sentenced to mandatory death sentence without the benefit of mitigation.

8. In relevant part, the Supreme Court held that:[109] Here in Kenya, in the case of Mutiso, the Court of Appeal stated [para 38]:“In all the circumstances of this case, the order that commends itself to us is to remit the case to the superior court with the direction that the court records the prosecution’s as well as the appellant’s submissions before deciding on the sentence that befits the appellant.”[110] We agree with the reasoning of the courts in the authorities cited and the submissions of the 1st petitioner, the DPP and the amici curiae. Comparative jurisprudence is persuasive and we see no need to deviate from the already established practice. The facts in this case are similar to what has been decided in other jurisdictions. Remitting the matter back to the High Court for the appropriate sentence seems to be the practice adopted where the mandatory death penalty has been declared unconstitutional. We therefore hold that the appropriate remedy for the petitioners in this case is to remit this matter to the High Court for sentencing.[111] It is prudent for the same court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners. For the avoidance of doubt, the sentencing re-hearing we have allowed, applies only for the two petitioners herein. In the meantime, existing or intending petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General is directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which is similar to that of the petitioners in this case.

9. The applicants have now brought the present petition seemingly buoyed by the Muruatetu doctrine. The petition seeks re-sentencing. In particular, it prays that “the honourable court be pleased to substitute [the] current sentence of imprisonment that [we are now serving] with a probation sentence.” In other words, the applicants seek for a downward revision of the sentence imposed by Anyarra-Emukule J.

10. Needless to say, the petition cannot succeed. The jurisdictional hook to re-sentence introduced by the Supreme Court in the Muruatetu case, was limited to cases where convicts of murder had been sentenced to death mandatorily. The jurisdictional hook did not and cannot extend to persons who were sentenced to a determinate term after due mitigation and in exercise of judicial discretion by a Judge of concurrent jurisdiction.

11. The applicants were fortunate enough to be sentenced during the brief period between the Godfrey Ngotho Mutiso case and James Njuguna Mwaura case jurisprudential moments when judges exercised judicial discretion in sentencing murder convicts. The trial Judge, therefore, exercised his discretion and sentenced each one of them for 20 years imprisonment.

12. Consequently, the present petition has no merit and must be dismissed.

13. Orders accordingly.

DATED AT NAKURU THIS 28TH DAY OF SEPTEMBER, 2022. .............................JOEL NGUGIJUDGEDELIVERED AT NAKURU THIS 6TH DAY OF OCTOBER, 2022. ..............................HILLARY CHEMITEIJUDGE