[2023] KEHC 25107 (KLR)

Gichobi v Republic (Petition E004 of 2022) [2023] KEHC 25107 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25107 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Petition E004 of 2022

RM Mwongo, J

November 9, 2023

Between

Andrew Njagi Gichobi

Petitioner

and

Republic

Respondent

Judgment

Background 1. Andrew Njagi Gichobi, the petitioner, was charged in the High Court with the offence of murder contrary to Section 204 as read with Section 204 of the Penal Code. The particulars of the offence were that on the 6th February, 2010 at Mwambo Village of Kajuu Sub-Location, Kirinyaga East Sub-County within Kirinyaga County he murdered George Njogu Wanja.

2. After a full hearing in which the prosecution availed 6 witnesses and the petitioner testified as the defendant, he was convicted and sentenced to thirty (30) years imprisonment31st October, 2019. The sentence was indicated to run from the date the accused was arrested.

3. The petitioner now petitions the honourable Court on the following grounds:i.He has been in prison for 8 years having been sentenced on 31st October, 2020. ii.This Court be pleased to consider his mitigating factors.iii.This Court should consider the landmark case in Petition Number 15 and 16 in the case of Francis Karioko Muruatetu &anotherv Republic [2017] eKLRiv.He is remorseful and promise to be of good conduct if released.

4. The parties filed submissions as directed by the court to dispose of the petition.

Applicant’s submissions 5. The applicant’s arguments are three pronged: that the sentence is excessively high; that he has rehabilitated; and that, in mitigation, he is remorseful and seeks the court’s leniency.

6. On the first prong, the applicant submits that incarcerating him for thirty years is torturous, discriminatory and a denial of a chance for him to reform which is contrary to the primary purpose of sentence of imprisonment; that sentence should not only be imposed for the purpose of retribution but also for the rehabilitation of prisoners.

7. On the second prong, he submits that he has been punished for over eight years in prison and regretful over the offence he committed. He has been rehabilitated and reformed hence prays for the court’s leniency and a second chance of life.

8. On the third prong, he submits that he is remorseful over the incident, and that he seeks forgiveness. He promises that he shall never repeat such or any other mistake in future; and that he is a first offender and has a clean prison record.

Respondents/ Prosecution submissions Whether this court has jurisdiction to entertain the petition 9. The prosecution submit that the petitioner was indeed convicted and sentenced on 31st October, 2019 for a definite term of 30 years for the offence of murder. There is no indication that the petitioner herein appealed either on conviction or sentence or both, at the Court of Appeal.

10. The respondent submits that Article 165 (3) (b) of the Constitution of Kenya 2010 does not envisage a situation where this Court having rendered itself clearly on the issue of sentence, is again moved to review its own sentence. The prosecution submits that doing so would be tantamount to it sitting on its own appeal.

Whether the Petitioner should benefit from Petition No 15 of 2016 11. On this issue, the respondents submit that the powers bequeathed to this Court under Article 165 (3) (b) of the Constitution of Kenya 2010 envisages issuance of sentences, including mandatory sentences, that have since been declared unconstitutional.

12. The Petitioner herein is currently serving a sentence of 30 years rendered on 31st October, 2019 and he has only served 4 years of that sentence.

Whether this Honourable Court should consider the Petitioner’s mitigatinq factors 13. As to whether the court should consider the mitigating circumstances, the respondents submit that the Petitioner has not demonstrated any mitigating factors as he ought to have moved this Court if he was aggrieved by the sentence under Section 333(2) of the Criminal Procedure Code.

14. The respondent submits that the Muruatetu case (supra), cited by the petitioner, gave guidelines on re-sentencing in respect of murder sentences. Finally, the respondent submits that the petitioner has not provided any significant demonstration that he has reformed to merit a lesser sentence than that meted. As such his sentence should ensue unhindered.

15. The issues for determination are as follows:1. Whether the petitioner’s sentence should be reviewed.2. If so, what should the appropriate sentence be?

Analysis and Determination 16. The background facts have already been stated. The petitioner has not appealed the decision. In this petition, he seeks review of his sentence under the principles in the Francis Muruatetu case.

Jurisdiction to review the sentence 17. The High Court’s classical criminal revision jurisdiction, also referred to as its review jurisdiction, is that donated to it by Sections 362 to 366 of the Criminal Procedure Code. The Court can only review the judgment of a subordinate court under Section 364 which provides for powers of High Court on revision as follows:“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order”

18. In the case of a review under the provisions of section 364, this clearly only applies to review of decisions of the subordinate courts. This court has no statutory review powers of High Court decisions under that section.

19. The Supreme Court, however, added a new category of revision in cases of murder where the mandatory death sentence was imposed notwithstanding the mitigating factors availed by the applicant.

20. The decision of the Supreme Court basically held that the mandatory death sentence was unconstitutional to the extent that it deprived an accused person mitigative rights, and the court was deprived its discretion to in making a sentencing decision weighed upon mitigation.

21. Ultimately, the Supreme Court did not delimit the issue of resentencing to higher courts, but left it open

22. The respondent submits that Article 165 (3) (b) of the Constitution of Kenya 2010 does not envisage a situation where this court having rendered itself clearly on the issue of sentence is then moved to review its own sentence as doing so would be tantamount to it sitting on its own appeal.

23. However, as already stated, the Supreme Court in Muruatetu’s case grants the High Court jurisdiction to review sentences that were under the mandatory section 204 of the Penal Code.

24. In the case of Stephen Mugendi Ndwiga v Republic [2021] eKLR Njuguna J held:“…the new jurisprudence as developed by the Supreme Court in Muruatetu’s case, High Court (being the trial court in murder cases) now has jurisdiction to re-sentence in cases where an accused person was sentenced under the mandatory section 204 of the Penal Code. (See paragraphs 110 and 111 of the said decision). The court in ordering resentence hearing found that section 204 of the Penal Code was unconstitutional as it provided for mandatory minimum sentence.”

25. In the Ndwiga case above, the learned Judge further went on to state“It is my considered view that this court cannot review a judgment of Hon. S. Chitembwe J and in doing so resentence the petitioner herein while invoking the dictum in Muruatetu’s case despite the change in law. Doing so would be tantamount to reopening the matter and applying the judicial decision retrospectively. Further this court is bereft of jurisdiction to review the said judgment as doing so would be tantamount to sitting as an Appellate court on the judgment of the Learned Judge and which act the law abhors.”

26. In my view, however, this Court does has jurisdiction to review a High Court sentence under the Muruatetu case principles in a case such as this, not merely because it may have a different view of the sentence meted, but more particularly, if the mitigation availed at the time of sentencing was not fully or properly considered, or did not adequately bring forth the circumstances that ought to have been considered. For example, if the offender was merely 20 years old or 70 years old, but that fact did emerge at mitigation, I opine that the court may itself review its decision if the circumstances are brought forth. The Muruatetu case gave the following guidelines for consideration in mitigation:“In sentencing the court will consider mitigating factors such as the following;a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social re-adaptation of the offender;j.Any other factor that the Court considers relevant.”

27. I have carefully perused the judgment of the High Court. The accused through his counsel was given opportunity to mitigate on the issue of mitigation. He said he was remorseful and pleaded for leniency; that he had aged parents; He asked the court to consider the period he had spent in custody and to issue a non-custodial sentence.

28. The state submitted that it did not have the offender’s past records, but said he should be treated as a first offender. Counsel asserted that the death penalty was still a valid legal sentence.

29. The court (Gitari, J) considered the submissions of the parties in mitigation, and concluded:“This offence is no doubt very serious and aggravated. The accused by one blow on the head of the deceased, terminated the life of a young man of only 23 years old. This was reckless and must have caused a lot of pain to the family. I find that a custodial sentence is called for. The blow on the head was meant to cause death or grievous harm.I sentence the accused to imprisonment for 30 years”

30. In this case, the applicant seeks review of his 30 years sentence on the ground that it is harsh. He submitted that the sentence is torturous, discriminatory and a denial of his chances to reform which is contrary to the primary purpose of sentence of imprisonment whereby sentence should not only be imposed for the purpose of retribution but also for the rehabilitation of prisoners.

31. However, the court clearly considered and took into account the mitigating circumstances availed. The court did not thereafter mete the mandatory death penalty prescribed, although it could have done so. Instead, it exercised its discretion and opted for a lesser sentence of imprisonment for thirty (30) years. In so doing, the court ensured that the petitioner had benefitted from the new regimen of law under the Muruatetu case, in imposing the lesser sentence, as against the mandatory sentence.

32. At the present time, of the 30 years imprisonment meted by the court, the petitioner has only served 4 years of the sentence. Further, the petitioner has not raised any mitigating circumstances that warrant the court to consider in reviewing the sentence. The court appreciated the full circumstances of and concerning the offender, to enable it to apply its discretion judiciously.

33. Accordingly. There is no basis made out in the petition for this court to review the sentence. The petition is therefore hereby dismissed.

34. Orders accordingly

DATED AT KERUGOYA THIS 9TH DAY OF NOVEMBER 2023R. MWONGOJUDGEDelivered in the presence of:Applicant/Petitioner in personMamba for State