[2021] KEHC 6808 (KLR)
The court held that, pursuant to the Supreme Court's decision in Muruatetu, the applicant was entitled to a resentencing hearing and to present mitigation. While acknowledging the applicant's remorse, rehabilitation, and mitigating factors, the court found the aggravating circumstances—including the brutality of the...
Source-derived case information.
- Citation
- [2021] KEHC 6808 (KLR)
- Parties
- Applicant: James Love Mwang’ong’o; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 167 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Resentencing Application Following Supreme Court Directions
- Outcome
- Application for resentencing allowed; applicant resentenced to 50 years imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Mitigation, Murder, Constitutional Rights, Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Love Mwang’ong’o
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Miscellaneous Criminal Application / Resentencing Application Following Supreme Court Directions
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Muruatetu.
- 2 What sentence is appropriate in light of the applicant's mitigation and the circumstances of the offence.
Ratio Decidendi
The court held that, pursuant to the Supreme Court's decision in Muruatetu, the applicant was entitled to a resentencing hearing and to present mitigation. While acknowledging the applicant's remorse, rehabilitation, and mitigating factors, the court found the aggravating circumstances—including the brutality of the offence, the vulnerability of the young victim, and the calculated nature of the crime—outweighed the mitigation. The court determined that a non-custodial sentence was not appropriate but that a definite term of imprisonment, rather than life, was fair and just. Accordingly, the applicant was resentenced to 50 years imprisonment, to run from the date of arrest.
Court Disposition
Application for resentencing allowed; applicant resentenced to 50 years imprisonment from date of arrest.
Orders
- The applicant shall serve 50 years imprisonment, to run from 28.2.2005 (date of arrest).
- Ruling read out in court in the presence of the applicant and counsel for the state.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CRIMINAL APPLICATION NO. 167OF 2019
JAMES LOVE MWANG’ONG’O....................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS....................REPUBLIC
RULING
The applicant herein, JAMES LOVE MWANG’ONG’O, has filed this application on 29. 3.2019 seeking to be heard on resentencing. In his application, he has declared that this application is brought in line with the directions of the Supreme court in Petition No. 15 of 2015, of Francis Karioko Muruatetu and others Versus Republic. The application is based on the affidavit of the applicant sworn on 1. 3.2019.
The applicant submitted based on the affidavit in support of the application that he was sentenced to death for the offence of murder on 8. 3.2007. His appeal was later dismissed by the Court of Appeal on 3. 8.2009. But that his death sentence was later commuted to life imprisonment. That his original trial was HCCR No. 47 of 2005 which the appeal case was Criminal Appeal Number 236 of 2009.
He sought to mitigate which he accordingly did. That he committed the offence when at a tender age and was not reflective. He was then alcoholic, but now at 43 years did is mature and he has learnt how to manage his emotions. He pleaded with the court to give him a second chance in life. While expressing remorse, he stated that he is a changed person, he stressed on having undergone several programmes on rehabilitation and that he is ready to join the society again. He produced several testimonials in support of his assertion that he had reformed.
Ms. Kibathi for the state opposed the application. Counsel stressed on the aggravated nature of the injuries the deceased suffered. That the same were heinous and thus the sentence of death was sufficient and lawful. However, that the life sentence he has been commuted to is sufficient given the circumstances of the case.
On the matter of certificate, it was submitted that the same are not proof of reform.
I have considered the submissions of both the applicant and the state. From the record, the applicant first faced a charge of murder i.e HCCR 47/2005. He was sentenced to death on 8. 3.2007. His appeal to the Court of Appeal was dismissed vide Criminal Appeal Number 236 of 2009 on 8. 10. 2010, and the death sentence was accordingly upheld. He has however, confirmed that in the year 2009, his death sentence was commuted to life imprisonment.
This matter has come back to this court pursuant to the directions given by the Supreme Court in the Muruatetu case (cited above). In the said case, the Supreme Court held that mandatory death sentence is unconstitutional and that even wherein the law provides for death sentence, the accused is entitled to make his mitigation before the court, using its discretion may apportion the appropriate sentence.
By way of this application, the applicant has now had the opportunity to present his mitigation which the court has noted. He has expressed his remorse and pleaded to be given a 2nd chance. He has also exhibited the various short course testimonies and certificate he has undergone and achieved while in prison. In the said Muruatetu case, at Paragraph 71, the Supreme Court gave guidelines on the factors to be considered with regard to mitigation during sentence re-hearing. The court listed:
- Age of the offender
- Whether he is a first offender
- Whether he pleaded guilty
- His character and record.
- Whether it was gender based violence.
- Remorsefulness of the offender.
- Possibility of reform
- Any other factor that the court considers relevant.
Obviously, the list above is not conclusive, giving the re-sentencing court to latitude to consider other relevant factors. In this case, I have considered the gruesome and cruel acts of violence that the deceased went through. She was a young lady of only about 25 years of age and just starting her career as an air hostess. The offence was unprovoked. The applicant made out a well calculated execution plan. The family of the deceased must have undergone tremendous pain and loss. These are all aggravating factors that I consider relevant in this matter.
I am convinced that the circumstances of this case weigh against the applicant’s plea for a non-custodial sentence on the other hand, I find that it is fair, just and appropriate to sentence the applicant to a definite prison terms. I accordingly order that the applicant do serve 50 years imprisonment. This period to run from the date of his arrest on 28. 2.2005.
D. O. OGEMBO
JUDGE
24. 5.2021.
Court:
Ruling read out in court (online) in the presence applicant (at Kamiti) and Mr. Naulikha for the state.
D. O. OGEMBO
JUDGE
24. 5.2021.
‘O’
FROM: HIGH COURT APPELLATE SIDE
TO: GK. KAMITI
INFO: PHQ.
24TH MAY, 2021
HCCR MISC. CRIMINAL APPLICATION NO. 167 OF 2019
HIGH COURT CRIMINAL MISC. APPL. NO. 167OF 2019 ORIGINATING FROM THE COURT OF APPEAL NUMBER 236 OF 2009 COURT AT NAIROBI. APPLICANT JAMES LOVE MWANG’ONG’O
APPEAL AGAINST SENTENCE IS ALLOWED BOTH ON CONVICTION AND SENTENCE. THE APPELLANT BE ACQUITTED OF THE 2 COUNTS (II AND III) AND BE RELEASED FORTHWITH UNLESS LAWFULLY HELD. CONFIRM ACTION
DEPUTY REGISTRAR