[2023] KEHC 26339 (KLR)

Gitahi v Republic (Miscellaneous Criminal Application E028 of 2022) [2023] KEHC 26339 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26339 (KLR)

Republic of Kenya

In the High Court at Murang'a

Miscellaneous Criminal Application E028 of 2022

J Wakiaga, J

December 8, 2023

Between

Ephrahim Ben Gitahi

Applicant

and

Republic

Respondent

(High Court Criminal Appeal No 488 of 2013 Criminal Appeal 488 & 489 of 2013 )

Ruling

Introduction 1. The Applicant was charged with the offence of robbery with violence in The Senior Principal Magistrates Court at Muranga being Criminal case No 29 of 2012, from which he was convicted and sentenced to death by hanging on 14th August 2013.

2. Being dissatisfied with the said conviction and sentence, he filed an appeal to this Court being High Court Criminal Appeal No 488 of 2013 and on 27th day of march 2019 this Court (Kimondo J) dismissed the said appeal on conviction but set aside the sentence which he substituted with a life imprisonment and in doing so the good Judge had this to say“33. The death sentence has not been outlawed, but it is no longer mandatory. This being a first appeal. I am at liberty to review the sentence. The two Appellants were first offenders. The 1st Appellant told the trial Court that his wife and children looked up to him for support….

34. I have considered those matters. The sentence imposed on an offender must be commensurate to his blameworthiness. Macharia v Republic [2003] 2 E.A 559. The Appellants were armed with guns, metal bars and pangas. The orgy of violence against the complainant’s family and his workers resulted in serious and permanent scars.

35. In this case, justice can only be served by a lengthy imprisonment term. I will sentence the Appellants to serve life imprisonment.”

3. On the 8th day of April 2019, the Applicant filed a notice of Appeal to the Court of Appeal, through the law firm of Ali & Co Advocates represented by Prof Nandwa Advocate. I will turn back to the said appeal in the course of the Ruling.

4. In the meantime, the Applicant had on 24th July 2018 approached this Court sitting at Machakos through a constitutional Petition which was registered as Misc. No. 109 of 2018 on the basis that he had exhausted all the appeal processes and that the Court of Appeal had dismissed his appeal but was seeking resentencing on the basis of the Supreme Court decision in Francis Karoki Muruatetu so that his life imprisonment be replaced with a term sentence commensurate to his criminal responsibility.

5. The said file was on 12th February 2019 transferred to the constitutional and human rights division at the high Court at Nairobi and registered as Petition No 20 of 2019 in respect to Criminal Case No 1298 of 2019, which file was on 15th July 2020 transferred to this Court and assigned the above case no.

Application 6. By a Notice of Motion dated 18th March 2023, the Applicant sought for the order, to be reversed and a lenient sentence be given and that the Court do adopt the precedents on matters of sentencing on minimum mandatory sentences.

7. The application was supported by his affidavit in which he deposed that he was arrested on 4th May 2012 on allegation of robbery with violence during which he spent one year, three months before conviction and sentenced on 14th August 201. His appeal to the high Court on conviction was dismissed but sentence substituted with life imprisonment. That while in prison he had undergone several rehabilitation programs offered thereat and should therefore be considered for probation on account of the same and his health challenges.

8. To the application was attached written submissions, wherein the Applicant stated that the Muruatetu Principles were adopted by the Court of Appeal in William Okungu Kittiny v Republic [2018] eKLR to the extent that the death sentence was a discretionary maximum sentence for the offence of robbery with violence. He submitted that he had been in prison for a period of ten years and having reflected on his action, should be accorded a second chance as he was fully rehabilitated and the mitigations as was stated in the following cases:a.Simon Kimani Maina v Republic [2019] eKLR where a first offender was resentenced to 14 years served.b.Daniel Gichimu Githinji & Another v Republic [2018] eKLR where the Court of Appeal took into account the fact that the Appellant was a first offender and passed a sentence of 15 years.

9. On the circumstances and facts herein, it was submitted that since his conviction, he had participated in rehabilitation programs offered in prison which should be taken into account as provided under the Sentencing Policy Guidelines, so as to enable him go back to society and take care of his children as was stated in Catherine Ndunge Muthoka v Republic where the judge stated that keeping the accused in custody will not only be detrimental to the accused but as to the welfare of her children and aging grandparents.

10. He erroneously submitted on the provisions of Section 333(2) of the Criminal Procedure Code which is not applicable to his case and Section 4 to 6 of the Probation Offenders Act.

11. In opposition to the application the state filed an affidavit through Ms Gakumu, in which it was deposed that having pronounced itself on the appeal by the Applicants, the Court became fuctus officio and that no grounds were placed before the Court to warrant review as there was no error from the judgement of the lower Court and this Court of Appeal and that this Court of appeal considered all the issues raised herein.

Analysis and Determination 12Resentencing in Kenya is a new kid on the block having been introduced by the Supreme Court in the now infamous Francis Karoki Muruatetu in which it declared the mandatory death sentence under Section 204 of the penal code unconstitutional with a rider test the decision did not disturb the validly of the death sentence as contemplated under Article 26(3) of the Constitution.

13. It is in deciding on what to do upon the declaration above that the Court made the following statement:“(98)The petitioners submitted that upon declaring mandatory death sentence unconstitutional the Court should order for a sentencing as opposed to a re-sentencing as they would in effect have been imprisoned illegally for seventeen years. Further, they contended that re-sentencing would not be fair as they had been in custody way too long and that they deserved compensation.

(99)The respondent was of the view that it was premature and un-procedural at this stage to award damages as the only time the Court can consider if the petitioners were unlawfully held in custody or prison is after the re-hearing. It was the respondent’s case that the award for damages is a civil claim that demands a separate and distinct hearing.

(100)The amici curiae urged the most appropriate remedy was a sentencing hearing by the High Court since there had never been a valid sentence passed in the petitioners’ case. They urged that the Court could set guidelines for the sentencing before magistrates and superior Courts while awaiting Parliament to formulate the guidelines.

(101)The Attorney General stated that the prayer that the petitioners be taken to the High Court for retrial sentencing should be declined. He submitted that the petitioners had sufficient recourse for pardon, substitution or remission of punishment under Article 133 of the Constitution. He urged the Court to refrain from supervising a re-sentencing and instead task him to form legislative framework to address the same.

(102)We find that both petitioners are deserving of a remedy as they were denied a fair trial - a right that accrued to them under to the previous Constitution, and to which they are still entitled under the present Constitution. We have looked at comparative case law to give us guidance as to how this should be done.

(103)In Reyes, the Privy Council when dealing with the unconstitutionality of the mandatory death penalty held that:“The case should be remitted to the Supreme Court of Belize in order that a judge of that Court may pass appropriate sentence on the Appellant having heard or received such evidence and submissions as may be presented and made.”

(104)Similarly, upon finding the mandatory death sentence was unconstitutional, the Supreme Court of Uganda in Kigula proceeded to make the following orders:“1For those respondents whose sentences were already confirmed by the highest Court, their petitions for mercy under art 121 of the Constitution must be processed and determined within three years from the date of confirmation of the sentence. Where after three years no decision has been made by the executive, the death sentence shall be deemed commuted to imprisonment for life without remission.

2. For those respondents whose sentences arose from the mandatory sentence provisions and are still pending before an appellate Court, their cases shall be remitted to the High Court for them to be heard only on mitigation of sentence, and the High Court may pass such sentence as it deems fit under the law.”

(105)Article 121 of the Uganda Constitution (similar to Article 133 of the Kenya Constitutions) provides:“(1)There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of—(a)the Attorney General who shall be the chairperson; and(b)six prominent citizens of Uganda appointed by the President.(2)…(3)….(4)The President may, on the advice of the committee—(a)grant to any person convicted of an offence a pardon either free or subject to lawful conditions;(b)grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him or her for an offence;(c)substitute a less severe form of punishment for a punishment imposed on a person for an offence; or(d)remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account of any offence.(5)Where a person is sentenced to death for an offence, a written report of the case from the trial judge or judges or person presiding over the Court or tribunal, together with such other information derived from the record of the case or elsewhere as may be necessary, shall be submitted to the Advisory Committee on the Prerogative of Mercy.(6)A reference in this article to conviction or imposition of a punishment, sentence or forfeiture includes conviction or imposition of a punishment, penalty, sentence or forfeiture by a Court martial or other military tribunal except a field Court martial.”

(106)In essence, the Ugandan Supreme Court’s approach was that: for those respondents whose cases were still pending or had not been finalized by the highest Court, they were to be remitted back to the High Court to rehear the case on sentencing. For those who had exhausted all avenues of appeal or concluded their matters they would rely upon the power of mercy under Article 121 of the Constitution of Uganda for reprieve. The Court further set a three year timeline for the Advisory Committee on the Prerogative of Mercy to perform its duty failure of which the mandatory death sentence is automatically converted to life imprisonment.

(107)In Malawi, the Constitutional Court in the case of Kafantayeni held that:“We make a consequential order of remedy under s 46(3) of the Constitution for each of the plaintiffs to be brought once more before the High Court for a judge to pass such individual sentence on the individual offender as may be appropriate, having heard or received such evidence or submissions as may be presented or made to the judge in regard to the individual offender and the circumstances of the offence.” [Emphasis added]

(108)The Malawi Court took a similar approach as the Ugandan Supreme Court. It remitted the cases back to the High Court for proper sentencing on the basis that the High Court is better placed to give an appropriate sentence having heard the mitigating factors.

(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.” ( emphasis added )

14. A clear reading of the Supreme Court decision above will show that the case was supposed to be referred back to the Court that heard the case to take up the mitigation and pass a new sentence taking into account the mitigation of the accused person.

15. It is this misunderstanding of the Muruatetu decision which has created confusion in the criminal justice system on what is now called the resentencing hearing and the jury is still out waiting for the Attorney General to do that which the Supreme Court directed him to.

16. Until then, my understanding of the Muruatetu decision, is that the same is only applicable to those who were sentenced to the mandatory sentences as provided in law and because of the mandatory nature of the sentences, they were not given an opportunity to mitigating and even when they did, the mitigating factors were not taken into account. Thus, the Court gave a window, the door having been closed for them to enter into the room of justice once again for Court to look at it again with the lenses of the discretion now given, with the death sentence being the maximum available base on the circumstances of each case.

17. With the above in mind, the question therefore for the Court to determine is whether the Applicant herein meets the criteria for resentencing?

18. As stated herein, the same did not supply the Court with the determination of the Court of Appeal in his appeal against the decision of this Court on appeal from the lower Court and a search at the Kenya Law did not yield any outcome and am therefore not sure whether the said appeal is still pending before the Court of Appeals.

19. However, it is clear that the Applicant’s mitigation was taken into account by this Court while reducing the mandatory death sentence to life imprisonment and would therefore agree with the State that the Court cannot now reopen the same unless under the window provided for in review. This perhaps explain why the petition was filed in Machakos and Nairobi.

20. The issues raised by the Applicant are now within the jurisdiction of power of mercy as it is not for this Court to look at how the Applicant has reformed since conviction but at his blameworthiness as at the time of the commission of the offence which the Court did while handling the appeal.

21. The authorities submitted by the Applicant cannot come to his aid as the same are in respect of the Court either exercising its original jurisdiction or appellate jurisdiction and not where the Applicant as in this case is applying for resentencing under the Muruatetu principles. The Applicant had or still has an opportunity to advance his claim to a lesser sentence on appeal to the Court of Appeal, this Court having exercised discretion and mated out a lesser sentence on appeal.

22. I therefore find no merit on the application herein as the issues raised herein should have been raised by the same on appeal. The resentencing hearing should be limited to the window provided for by the Supreme Court and should not be used by the Courts for prison decongestion program and to reward the convicts for good behaviour.

23. In the final analysis the application herein is dismissed.

DATED SIGNED AND DELIVERED AT MURANGA THIS 8th DAY OF DECEMBER 2023J. WAKIAGAJUDGEIn the presence of:The Applicant in personMr Kirui for the StateMs. Jackline Court Assistant