[2019] KEHC 4755 (KLR)
The court found that, following the Supreme Court's guidance in Muruatetu, the mandatory death penalty for murder is unconstitutional and courts must exercise discretion in sentencing. The applicant's mitigation, including her remorse, rehabilitation, and personal circumstances, was considered. However, the court...
Source-derived case information.
- Citation
- [2019] KEHC 4755 (KLR)
- Parties
- Applicant: Jackline Vidanya Baraza; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 563 of 2018
- Procedural Posture
- Miscellaneous Application / Resentencing Ruling
- Outcome
- application for resentencing allowed; death sentence set aside; applicant sentenced to 25 years imprisonment from date of arraignment
- Judges
- AM Cockar
- Legal Topics
- Resentencing, Death Penalty, Murder, Mitigation, Supreme Court Guidance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackline Vidanya Baraza
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Resentencing Ruling
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the applicant convicted of murder, considering mitigation and circumstances of the offence.
Ratio Decidendi
The court found that, following the Supreme Court's guidance in Muruatetu, the mandatory death penalty for murder is unconstitutional and courts must exercise discretion in sentencing. The applicant's mitigation, including her remorse, rehabilitation, and personal circumstances, was considered. However, the court also weighed the brutal and vicious nature of the offence, the vulnerability of the elderly victim, and the absence of a victim impact statement due to the unavailability of the victim's family. Balancing these factors, the court determined that a custodial sentence of 25 years' imprisonment, calculated from the date of arraignment, was appropriate and proportionate to the...
Court Disposition
application for resentencing allowed; death sentence set aside; applicant sentenced to 25 years imprisonment from date of arraignment
Orders
- The applicant is sentenced to 25 years imprisonment to be calculated from 5th February, 2009.
Full Case Text
Judgment text and source record
27 paragraphs
REPUPLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HIGH COURT MISC. APPLICATION CASE NO. 563 OF 2018
LESIIT, J
JACKLINE VIDANYA BARAZA....................................APPLICANT
VERSUS
REPUBLIC......................................................................RESPONDENT
RULING ON RE-SENTENCE
1. This application came before this court by way of Chamber Summons filed in a Petition brought under sub-section 216 and 329 of the Criminal Procedure Code, section 333 of Criminal Procedure Code and invokes Joseph Kaberia Kahiga & Others vs. AG Petition No. 618 of 2010. Even though it was not quoted, the application for Resentencing is based on the Supreme Court Judgment of Francis Kariko Muruatetu and Another versus Republic and Others [2017] eKLR, Petition No. 15 and 16 of 2016 [consolidated].
2. The Applicant was convicted by this court on 19th April 2011 for the offence of murder contrary to section 203 as read with section 204 of the Penal Code, where I sentenced the Applicant to the death penalty. Her appeal to the Court of Appeal was dismissed on 6th November, 2015 and the conviction and sentence upheld by that court.
3. In her brief submission in support of her Petition the Applicant has indicated that she is still facing the death penalty as her sentence has not been committed as yet. There is nothing to confirm that position, but for purposes of this application it matters very little whether the Applicant’s sentence has since been commuted to life imprisonment based on the Supreme Court judgment of Muruatetu, supra.
4. The Applicant has pleaded with the court to forgive her and pass a lenient sentence. She urged the court to consider her mother who is aged. She has no family of her own as the baby she got was 2 weeks old at the time of her arrest, but died during her incarceration.
5. The Applicant urged that she had undergone various courses, learned various skills and that she was capable of fending for herself if she was given a chance to re-integrate into the society. She also urged that she had developed a relationship with God and will never commit such an offence ever again. She said that the underlying cause of the incident were constant struggles and fights with the deceased.
6. The Learned Prosecution Counsel Ms. Onunga urged the court to consider guidance given in the Muruatetucase which include considerations whether the accused is remorseful and regrets her actions. Counsel urged that the accused was not remorseful then given the fact she hid for one year after committing the offence and in her defence denied the offence.
7. Counsel urged the court to consider the vicious and brutal manner in which the deceased was attacked and the fact that the deceased was an old lady and was found with five stab wounds. Counsel submitted that the sentence she was facing was fair.
8. I did call for a Re-sentencing Probation Report which has been filed. The most important information which I required was a Victim Impact Statement. That was not included in the Report for reason the family of the victim in this case were not found.
9. I have considered all the submissions given by the Applicant and also the Prosecution. I also considered the Probation Officers Report.
10. Murder still remains a very serious offence because no one has the right to take life for whatever cause. It is God who gives life and He alone should take it away.
11. I am impressed by what the Applicant has learnt while in prison, both in terms of life skills and also in terms of spirituality.
12. As I said earlier, we have no reaction from the family of the victim who are also victims in this case. Even without any statement from them, it goes without saying that indeed the victims have suffered untold loss as the deceased was an elderly woman with a husband and children. Incident took place in their home. It is traumatizing to find a dead body at home.
13. It is worse given the circumstances of this case that the deceased was stabbed on the head and neck and her long hair tied around her neck. The kitchen knife was the one used to do it. There was no apparent motive for the attack. On the circumstances it is fair to conclude that the Applicant was vicious and also merciless.
14. Having taken all these circumstances with consideration, I will sentence the Applicant to 25 years imprisonment to be calculated from the date she was arraigned in court on 5th February, 2009.
15. Those are my orders.
DATED AT NAIROBI THIS 29TH JULY, 2019
LESIIT, J
JUDGE