[2021] KEHC 9556 (KLR)
The court found that the mandatory death sentence imposed on the applicant under Section 296(2) of the Penal Code was unconstitutional in light of the Supreme Court's decision in Muruatetu, which held that mandatory sentences that remove judicial discretion violate constitutional rights. The applicant's trial and...
Source-derived case information.
- Citation
- [2021] KEHC 9556 (KLR)
- Parties
- Applicant: George Muriithi Kaari; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Petition 95 of 2020
- Procedural Posture
- Constitutional Petition / Sentence Review
- Outcome
- sentence_varied
- Judges
- LM Njuguna
- Legal Topics
- Mandatory Sentencing, Death Penalty, Robbery With Violence, Judicial Discretion, Cruel and Inhuman Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Muriithi Kaari
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Sentence Review
Legal Issues
- 1 Whether the mandatory death sentence under Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant is entitled to resentencing following the Supreme Court's decision.
- 3 Whether the sentence imposed violated the applicant's constitutional rights under Articles 25(b) and 50.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the applicant under Section 296(2) of the Penal Code was unconstitutional in light of the Supreme Court's decision in Muruatetu, which held that mandatory sentences that remove judicial discretion violate constitutional rights. The applicant's trial and appeal were concluded before the Muruatetu decision, but he is entitled to benefit from its principles. The court considered the applicant's remorse and plea for leniency, as well as the seriousness and circumstances of the offence, and determined that a definite term of imprisonment was appropriate. Consequently, the death sentence was set aside and substituted with a sentence...
Court Disposition
sentence_varied
Orders
- The sentence of death imposed by the trial court and upheld by the High Court is set aside.
- The applicant is sentenced to 20 years imprisonment.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
PETITION NO. 95 OF 2020
GEORGE MURIITHI KAARI......APPLICANT
VERSUS
REPUBLIC...............................RESPONDENT
RULING
1. The petitioner herein has moved this court by way of a petition dated the 2nd day of November, 2020 in which he has sought this court’s intervention in sentencing as per the Supreme Court directive in Petition No. 15 of 2015. The grounds in support of the application are that;
i. The sentence imposed by the trial court is inconsistent with Articles 25(b) and 50 of the Constitution of Kenya.
ii. That the imposition of a mandatory death penalty constitutes a cruel and inhuman treatment.
iii. Section 296(2) of the Penal Code is inconsistent with Article 50(2) of the Constitution.
iv. That his constitutional rights were highly violated in sentencing him to death.
2. The petitioner herein was charged with the offence of Robbery with violence contrary to Section 296(2) of the Penal Code in Criminal Case No. 492 of 2013 at Runyenjes and he was sentenced to suffer death. He approached the High Court at Embu, in Criminal Appeal Case No. 1 of 2014 but his appeal was dismissed.
3. He moved to the Court of Appeal at Nyeri in Criminal Appeal No. 47 of 2015 and the Court of Appeal referred the case back to the High Court for retrial but he later withdrew the appeal.
4. At the hearing of the application, he prayed that he be given a definite sentence adding that he is remorseful.
5. On her part, counsel for the respondent did not oppose the review of the sentence but urged the court to consider the circumstances under which the robbery was committed and also take into account the seriousness of the offence.
6. The court has considered the petition and the submissions by the petitioner and the learned counsel for the respondent.
7. The offence of robbery with violence is provided for in Section 296(2) of the Penal Code and in the event of being found guilty, the only sentence provided thereunder is death. On appeal in the High Court, the sentence of death was upheld after the court dismissed the appeal. The judgment of the High Court was delivered on the 26th day of May, 2015. At the material time both the trial court and the High Court did not have jurisdiction to impose a lesser sentence than that provided for under Section 296(2).
8. However, with the Supreme Court’s decision in Petition No. 15 of 2015 Francis Karioko Muruatetu & Another Vs Republic, the position changed when the Supreme Court declared Section 204 of the Penal Code unconstitutional for taking away the court’s discretion in sentencing.
9. In the case herein, the petitioner was sentenced to a mandatory sentence of death and his trial and appeal were heard before the decision in the Muruatetu case was given by the Supreme Court.
10. In the circumstances, he is entitled to the benefits that came along with that land mark decision. The court has considered his submissions to the effect that he is remorseful and his plea for leniency. However, the court has also considered the circumstances under which the offence was committed and the seriousness of the offence.
11. Taking all these factors into consideration, the sentence of death imposed by the trial court and upheld by the High Court, is hereby set aside and substituted with a sentence of 20 years imprisonment.
12. It is so ordered.
Delivered, datedandsignedatEmbuthis 27thday ofJanuary, 2021.
L. NJUGUNA
JUDGE
…………………………………………..for the Applicant
………………………………………..for the Respondent