[2020] KEHC 690 (KLR)
The court found that the mandatory death sentence imposed on the applicant was unconstitutional in light of the Supreme Court's decision in Francis Karioko Muratetu & Another v Republic. The court considered the period the applicant had spent in custody prior to sentencing, the circumstances of the offence, the fact...
Source-derived case information.
- Citation
- [2020] KEHC 690 (KLR)
- Parties
- Applicant: George Marwa Chacha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 42 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- death sentence set aside; applicant resentenced to 25 years' imprisonment from 22nd July 2005
- Judges
- REA Ougo
- Legal Topics
- Death Penalty, Resentencing, Mitigation of Sentence, Unconstitutionality of Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Marwa Chacha
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence imposed on the applicant was unconstitutional in light of the Supreme Court decision in Francis Karioko Muratetu & Another v Republic.
- 2 Whether the applicant is entitled to resentencing considering the period spent in custody and mitigating circumstances.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the applicant was unconstitutional in light of the Supreme Court's decision in Francis Karioko Muratetu & Another v Republic. The court considered the period the applicant had spent in custody prior to sentencing, the circumstances of the offence, the fact that the applicant was a first offender, and the loss of life involved. Taking these factors into account, the court set aside the death sentence and resentenced the applicant to 25 years' imprisonment, to run from the date he was first charged, 22nd July 2005.
Court Disposition
death sentence set aside; applicant resentenced to 25 years' imprisonment from 22nd July 2005
Orders
- The death sentence imposed on George Marwa Chacha is set aside.
- George Marwa Chacha is sentenced to 25 years' imprisonment to run from 22nd July 2005.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CONSTITUTION PETITION NO. 42 OF 2019
GEORGE MARWA CHACHA ....APPLICANT
VERSUS
REPUBLIC .............................. RESPONDENT
JUDGMENT
1. This is a judgment on an application for revision of the sentence of death imposed upon the petitioner/applicant in Kisii HCCR No. 43 of 2005. GEORGE MARWA CHACHAthe applicant herein has filed the petition seeking that he be re-sentenced. He contends that the mandatory death sentence imposed on him was excessive, arbitrary and inhuman.
2. Mr. Otieno for the State supported the application. He submitted that based on the Supreme Court decision on the matter the court could exercise its jurisdiction and resentence.
3. The Supreme Court decision referred to by the learned counsel is the case of Francis Karioko Muratetu & Another v Republic Petition No. 15 & 16 of 2015 [2017]eKLR. In that matter, the Apex Court held that the mandatory death penalty was arbitrary and unconstitutional as it did not take into consideration mitigation and varying degrees of gravity and culpability.
4. In a judgment dated 24th January 2012, this court differently constituted found that the petitioner had murdered the deceased, who was 8 years old, in broad daylight by shooting him with an arrow fatally wounding him. The applicant told the court that he was 50 years and had been in prison since 2005. He had filed Criminal Appeal No. 218 of 2018 before the Court of Appeal in Kisumu but later withdrew it.
5. Section 333 (1) & (2)of theCriminal Procedure Code provides that where a person is convicted, any period spent in custody prior to sentencing shall be taken into consideration. I have considered the period the petitioner has been in jail. He was charged on 22nd July 2005. He was sentenced by the High Court on 24th January 2012. He was in custody for more than 6 years before he was sentenced. Considering the circumstances of the case, the fact that a life was lost, the period he has served and the fact that the applicant was a first offender, I set aside the death sentence and sentence GEORGE MARWA CHACHAto a period of 25 years’ imprisonment to run from 22nd July 2005.
Dated, signedand delivered at KISIIthis 17th day of December 2020.
R.E OUGO
JUDGE
In the Presence of;
Petitioner Present
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Ms. Rael Court Assistant