[2021] KEHC 7734 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and that sentencing discretion must be exercised by considering both aggravating and mitigating circumstances. While the petitioner demonstrated remorse, rehabilitation, and positive...
Source-derived case information.
- Citation
- [2021] KEHC 7734 (KLR)
- Parties
- Petitioner: John Mwazo Machala; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 148 of 2019
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- Death sentence set aside; petitioner resentenced to 35 years' imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Resentencing Guidelines, Mitigation Factors, Rehabilitation, Victim Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Mwazo Machala
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Resentencing Application / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the petitioner considering the circumstances and mitigation presented.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and that sentencing discretion must be exercised by considering both aggravating and mitigating circumstances. While the petitioner demonstrated remorse, rehabilitation, and positive conduct during incarceration, the gravity of the offence—murder of a five-year-old child with aggravating circumstances—necessitated a severe sentence to reflect community protection, deterrence, and retribution. The court set aside the death sentence (commuted to life imprisonment) and imposed a determinate sentence of 35 years' imprisonment from the date of arrest, balancing...
Court Disposition
Death sentence set aside; petitioner resentenced to 35 years' imprisonment from date of arrest.
Orders
- The death sentence imposed on the petitioner 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
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 148 OF 2019
JOHN MWAZO MACHALA.............................PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION....RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in Mombasa High Court Criminal Case No.1 of 2013. He was tried and convicted
and sentenced to death. He lost his appeal in the Court of Appeal in Mombasa Criminal Appeal No. 24 of 2016, and he has been in jail for 7 years.
2. The Petitioner has now petitioned this Court for review of sentence in view of the Supreme Court declaration in Francis Kariokor Muruatetu & Another v Republic SCK Pet. No. 15 of 2015 [2017] eKLRin which the apex Court found the mandatory nature of the death sentence to be unconstitutional.
Brief Circumstance of the offence
3. The particulars are that the deceased, a girl aged 5 years old, disappeared and was later in the evening found dead in a room in the hotel in which the Petitioner lived. There was evidence that the deceased was defiled before being killed. The Petitioner who was the only person living in the hotel at the time of the deceased disappearance, allegedly refused to open his door, and that is when neighbours opted to break into the Petitioner’s room. However, the Petitioner attempted to run, but was apprehended, and upon searching the bag the Petitioner was carrying, bloodstained clothes belonging to the deceased were recovered.
4. The Petitioner submitted that as a first offender, he regretted his crime and that it was due to idleness, bad company and lack of knowledge that he committed the crime. However, during his imprisonment, he has realized his mistakes, he is reformed and has also accepted Jesus Christ as his savior. The Petitioner further stated that he had obtained 6 diplomas in Bible studies, is a paralegal, and he is a grade 3 electric technician and he is also an Advocate for “crime si poa”. The Petitioner urged the Court to give him a second chance so that he could go and preach the gospel of peace and the need to obey laws.
5. Ms. Wanjohi, learned prosecutor submitted that the Petitioner ought to be punished and the sentence meted should be commensurate to the offence of murder, which in this case was carefully calculated and executed. Further, Counsel argued that the rights of the victim and that of the public at large outweigh the Petitioner’s prayer to be released. On the sentence, Ms. Wanjohi submitted that a deterrent sentence of 40 years including time served in prison would be appropriate.
6. I have carefully considered the petition, the submissions by the petitioner and the State and the issue at hand. Sentencing is a discretion of the trial court. In Ambani v Republic [1990] KLR, Bosire J. (as he then was) stated that a sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirety before settling for any given sentence.
7. Petitioner’s Progress Report indicates that he is remorseful and given a second chance, he is willing to be a good citizen. He has a diploma in Bible studies, and he is a trainer of trainers. Therefore, he is very resourceful as he works as a teacher/chaplain in the prison.
8. I have considered the mitigation, his prison progress report which indicates that he is currently 49 years and has served 9 years in prison. I have also considered the aggravating circumstances in this case. This Court finds that the crime committed by the Petitioner was so grave and caused death to an innocent child. That crime must be met with adequate punishment to send a clear message that crime does not pay and shall be heavily punished once established.
9. The aim of punishment is community protection, deterrence, retribution, rehabilitation, restorative Justice and reformation. This Court has noted, however, the fact that the Petitioner is of good character and is clearly reformed. It is because of these that this Court hereby sets aside the death sentence imposed on the Petitioner by the trial Court which was later commuted to life imprisonment, and instead thereof jails the Petitioner for a term of 35 years from the date of arrest.
That is the Judgment of the Court.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 13TH DAY OF APRIL, 2021
E. K. O. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant