[2019] KEHC 1295 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the Petitioner was unconstitutional. The court considered the Petitioner's progress report, mitigation, and the gravity of the offence. While acknowledging the seriousness of the crime, the court found...
Source-derived case information.
- Citation
- [2019] KEHC 1295 (KLR)
- Parties
- Applicant: Isaiah Kisur Kurinyang; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 50 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- death sentence set aside; Petitioner resentenced to 35 years' imprisonment from date of arrest
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing, Right to Fair Trial, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Kisur Kurinyang
Applicant
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence under Section 204 of the Penal Code is unconstitutional.
- 2 Whether the Petitioner is entitled to resentencing following the Supreme Court decision in Muruatetu.
- 3 What is the appropriate sentence for the Petitioner in light of the circumstances and mitigation.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the Petitioner was unconstitutional. The court considered the Petitioner's progress report, mitigation, and the gravity of the offence. While acknowledging the seriousness of the crime, the court found evidence of the Petitioner's reformation and positive conduct in prison. Consequently, the court set aside the death sentence and resentenced the Petitioner to 35 years' imprisonment from the date of arrest, balancing the need for punishment with recognition of rehabilitation and constitutional rights.
Court Disposition
death sentence set aside; Petitioner resentenced to 35 years' imprisonment from date of arrest
Orders
- The death sentence imposed on the Petitioner by the trial court is set aside.
- The Petitioner is sentenced to 35 years' imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
27 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 50 OF 2018
ISAIAH KISUR KURINYANG .......................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS.....RESPONDENT
JUDGMENT
1. The Petitioner herein was charged and convicted with Murder contrary to Section 203 as read with Section 204 of the Penal Code in Eldoret High Court Criminal Case No. 1 of 1998 and sentenced to death. The Petitioner subsequently lodged an appeal before the Court of Appeal in Nakuru which was dismissed.
2. Brief facts of the case are that on 22nd April, 1997 at Lomut Trading Centre in West Pokot District within Rift Valley Province murdered Purity Chepkoech Rotino using a gun.
3. The Petitioner now claims that the sentencing to death by the trial court as well as the appellate court was an infringement of his fundamental rights. The Petitioner avers that the said courts interpreted the provisions of Section 204 of the Penal Code to mean that death sentence was the only sentence available to the Petitioner and that the said courts held the view that the death sentence under the said provisions was mandatory and that no other sentence was tenable.
Hearing and Submissions
4. The matter came up for hearing on 31st July, 2019.
5. It was the Petitioner’s submissions that he was convicted in 2000 when he was 26 years and has been in prison for 22 years. That he has children who are now adults and are being discriminated as they cannot inherit their ancestral land and wishes to be released as he has now reformed.
6. The Respondent (DPP) through its Counsel Mr. Fedha submitted that the Petitioner has served 22 years and prayed for a total of 40 including the years served due to the circumstances surrounding his charge.
The Determination
7. On the issue of sentence, the Supreme Court in Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLRdeclared the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code to be unconstitutional. To that extent this court only has to resentence the Petitioner.
8. I have perused the Petitioner’s Progress Report. I have also considered Petitioner’s mitigation. The crime that was committed by the Petitioner is very grave. However, it is not the duty of this court to revisit evidence that was tendered in the trial court. It is evident that the Petitioner has reformed going by the positive remarks issued by the Prison Officers. For the foregoing reasons I hereby set aside the death sentence imposed on the Petitioner by the trial court. Instead thereof I jail the Petitioner for a term of 35 Years from the date of arrest.
9. Right of Appeal within 14 days.
Dated, Signed and Delivered at Mombasa this 18th day of December, 2019.
E. K. O. OGOLA
JUDGE
In the Presence of:
Ms. Mutua for DPP
Petitioner in person
Mr. Kaunda Court Assistant