[2019] KEHC 2899 (KLR)
The Court held that, in light of the Supreme Court's decision in Muruatetu, the mandatory death sentence is unconstitutional and that the petitioner is entitled to a resentencing hearing where he can present mitigation. The High Court affirmed its jurisdiction to hear such petitions under Article 165(3) of the...
Source-derived case information.
- Citation
- [2019] KEHC 2899 (KLR)
- Parties
- Appellant: Jeremiah Gatuiki Kiriungi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Petition 7 of 2018
- Procedural Posture
- Criminal Petition / Ruling on Application for Resentencing Hearing
- Outcome
- Petition to proceed to resentencing hearing; petitioner to mitigate; State to respond.
- Judges
- LW Gitari
- Legal Topics
- Resentencing, Mandatory Death Sentence, Mitigation Rights, Constitutional Rights, New Evidence, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Gatuiki Kiriungi
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Resentencing Hearing
Legal Issues
- 1 Whether the petitioner is entitled to a resentencing hearing following the Supreme Court decision declaring the mandatory death sentence unconstitutional.
- 2 Whether the High Court has jurisdiction to entertain the petition for resentencing and mitigation under Article 165(3) of the Constitution.
Ratio Decidendi
The Court held that, in light of the Supreme Court's decision in Muruatetu, the mandatory death sentence is unconstitutional and that the petitioner is entitled to a resentencing hearing where he can present mitigation. The High Court affirmed its jurisdiction to hear such petitions under Article 165(3) of the Constitution, as previously ruled in similar matters. The petition should therefore proceed to a resentencing hearing, allowing the petitioner to mitigate and the State to respond.
Court Disposition
Petition to proceed to resentencing hearing; petitioner to mitigate; State to respond.
Orders
- The petition shall proceed before this Court for resentencing hearing.
- The petitioner shall be given an opportunity to mitigate.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERUGOYA
HIGH COURT PETITION NO. 7 OF 2018
JEREMIAH GATUIKU KIRIUNGI......................................PETITIONER
VERSUS
REPUBLIC..............................................................................RESPONDENT
RULING
1. The appellant JEREMIAH GATUIKI KIRIUNGI had filed a petition arising from the judgment of the Court of Appeal in Appeal No. 73/08. In the petition, he was alleging that he had found new evidence and wanted the Court to order a retrial so that he could present the new evidence for consideration by the Court.
2. He has however filed grounds to amend that petition and now seeks an order for re-sentencing hearing. He relies on the Supreme Court decision inFrancis Kioko Muruatetu and Another -V- Republic (2017) eKLR. He avers that the Supreme Court has ruled that the Mandatory Death Sentence has been declared unconstitutional. He was not given a chance to mitigate.
That the offence did not involve violence and there were no aggravating circumstances. He further states that he has been in prison for the last 14 years and has reformed. He prays for a chance to mitigate and the re-hearing on the sentence so that the Court can give an appropriate sentence.
3. The State did not oppose the application but urged the Court to give directions as there are many applications seeking these same orders.
4. What the applicant is seeking is sentencing re-hearing so that he can file mitigation. There are several petitions seeking similar orders like the ones the applicant is seeking.
5. In Criminal Petition No. 8/2019 Jane Wanjiku Muriuki -V- Republic, I have ruled that this Court has jurisdiction to hear the petition as the Court has the mandate under Article 165 (3) of the Constitution to hear and determine petitions as well as to enforce matters of rights and fundamental freedom enshrined in the Constitution.
6. The petition should therefore proceed before this Court and the petitioner to mitigate and the State be given a chance to respond.
Dated at Kerugoya this 31st day of October 2019.
L.W. GITARI
JUDGE