[2022] KEHC 14563 (KLR)
The court found that the mandatory death sentence previously imposed on the applicants was unconstitutional following the Supreme Court's decision in Muruatetu. The court reviewed the circumstances of the offence, noting the extreme violence and brutality inflicted on the deceased by the applicants. Despite the...
Source-derived case information.
- Citation
- [2022] KEHC 14563 (KLR)
- Parties
- Applicant: James Nyaga Gitemba; Applicant: Victor Nthiga Kiruthu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Revision Case 412 of 2020
- Procedural Posture
- Criminal Revision / Resentencing Application After Conviction and Appeal
- Outcome
- Application for resentencing allowed; death sentence set aside and substituted with thirty years' imprisonment from 30th October 2010.
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Death Sentence, Murder Conviction, Constitutional Rights, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Nyaga Gitemba
Applicant
Victor Nthiga Kiruthu
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Resentencing Application After Conviction and Appeal
Legal Issues
- 1 Whether the mandatory death sentence imposed on the applicants should be reviewed in light of the Supreme Court decision in Francis Karioki Muruatetu & Another v Republic.
- 2 Whether the circumstances of the offence and the applicants' conduct warrant a resentencing to a term of imprisonment.
Ratio Decidendi
The court found that the mandatory death sentence previously imposed on the applicants was unconstitutional following the Supreme Court's decision in Muruatetu. The court reviewed the circumstances of the offence, noting the extreme violence and brutality inflicted on the deceased by the applicants. Despite the applicants' remorse and the time already served, the court determined that the seriousness and viciousness of the attack warranted a substantial custodial sentence. Consequently, the court substituted the death sentence with a term of thirty years' imprisonment, effective from the original sentencing date of 30th October 2010.
Court Disposition
Application for resentencing allowed; death sentence set aside and substituted with thirty years' imprisonment from 30th October 2010.
Orders
- The mandatory death sentence imposed upon the applicants is reviewed and set aside.
- The applicants are sentenced to thirty (30) years imprisonment from 30th October 2010.
Full Case Text
Judgment text and source record
21 paragraphs
Gitemba & another v Republic (Revision Case 412 of 2020) [2022] KEHC 14563 (KLR) (27 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14563 (KLR)
Republic of Kenya
In the High Court at Meru
Revision Case 412 of 2020
TW Cherere, J
October 27, 2022
Between
James Nyaga Gitemba
1st Applicant
Victor Nthiga Kiruthu
2nd Applicant
and
Republic
Respondent
Ruling
1. On 23rd October, 2014, Applicants were sentenced to suffer death for the offence of murder in Republic v Victor Nthiga Kiruthu & another [2014] eKLR. Their appeal to the Court of Appeal vide Victor Nthiga Kiruthu & another v Republic [2017] eKLR was dismissed on 10th October, 2017.
2. Applicants pray for resentence on the grounds that they have served over 10 years, are remorseful and have reformed.
3. The state through Ms.Mwaniki, (PPC) learned counsel for the state submitted that the application for resentence was not opposed.
4. I have considered that the offence the manner in which the offence was executed. The evidence adduced was that 2nd Applicant struck first by cutting the deceased on the neck. The 1st Applicant cut him next on the shoulder or hand. Then together with others set upon the deceased, cutting him all over the body. He died on the spot.1. The post mortem report revealed multiple deep cuts all over the body, the neck completely severed leaving a piece of skin holding it to the body, deep cut on the scalp exposing the skull bone, multiple deep cuts on the right hand, deep cuts on the forearm cutting through the bones, multiple cuts on the lower limbs with three deep cuts on the thigh, knee joint, lateral side and the leg on the right, a deep cut on the left leg at the medial aspect of the ankle joint.2. The cause of death was severe neck and head injuries secondary to trauma. That deceased died a painful death cannot be underestimated.3. The Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declared the mandatory death sentence unconstitutional and this has necessitated resentencing of all persons previously sentenced to the mandatory minimum and maximum sentences.4. For the foregoing reasons, I find that the Applicant’s application for review of the sentence is merited. Accordingly, the mandatory death sentence that was imposed upon the Applicants is reviewed and having considered the viciousness of the attack on the deceased by the Applicants, the sentence is substituted with thirty (30) years imprisonment from the 30th October, 2010 when they were sentenced.
DELIVERED AT MERU THIS 27TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiApplicants - PresentFor Applicants - Mr. Nyenyire AdvocateFor the State - Ms. Mwaniki (PPC)