[2022] KEHC 1966 (KLR)
The court held that while the death sentence itself remains constitutional, its mandatory imposition is not. The applicant was given an opportunity to mitigate at trial, but the trial court was bound by the law at the time to impose the death penalty. In light of the Supreme Court's decision in Muruatetu, the court...
Source-derived case information.
- Citation
- [2022] KEHC 1966 (KLR)
- Parties
- Applicant: Joseph Bashir Okumu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Petition E013 of 2021
- Procedural Posture
- Constitutional Petition / Sentence Review Ruling
- Outcome
- application_allowed_in_part
- Legal Topics
- Mandatory Death Sentence, Sentencing Discretion, Mitigation, Unconstitutionality of Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Bashir Okumu
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Sentence Review Ruling
Legal Issues
- 1 Whether the mandatory death sentence imposed on the applicant should be reviewed in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic (2018) eKLR.
- 2 Whether the applicant has provided sufficient grounds for the court to exercise its discretion to alter the sentence.
Ratio Decidendi
The court held that while the death sentence itself remains constitutional, its mandatory imposition is not. The applicant was given an opportunity to mitigate at trial, but the trial court was bound by the law at the time to impose the death penalty. In light of the Supreme Court's decision in Muruatetu, the court found that the circumstances of the offence, including the absence of physical injury to the victim and the applicant's mitigation, warranted a review of the sentence. The court exercised its discretion to set aside the death sentence and substitute it with a term of fifteen years' imprisonment, considering both the need for deterrence and the harshness of the original sentence.
Court Disposition
application_allowed_in_part
Orders
- The death sentence imposed by the trial court is set aside.
- The applicant is sentenced to fifteen (15) years imprisonment from 17th August 2016.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PETITION NO.E013 OF 2021
JOSEPH BASHIR OKUMU …………………………. PETITIONER
VERSUS
REPUBLIC …………………………………………...RESPONDENT
R U L I N G
[1]It was in the year 2016, when the applicant, Joseph Bashir Okumu, appeared before the magistrate’s court at Busia facing a charge of attempted robbery with violence, contrary to S.297 (2). It was alleged that on 11th July 2016 while armed with a dangerous weapon i.e a knife. The applicant violently attempted to rob Wandera Kenneth Ouma of his motor cycle valued at ksh.100,000/=.
Upon his plea of not guilty, the applicant was tried, convicted and sentenced to suffer death.
The record availed herein is incomplete in indicating whether or not the applicant appealed the conviction and sentence. However, in the applicant’s written submissions there is indication that the applicant indeed preferred a first appeal to the High Court, but without success. Thereafter, he proceeded to the Court of Appeal for a second appeal which he says he withdrew in favour of the present application.
[2] Be that as it may, the application is improperly brought before this court by way of a supporting affidavit meant to support the prayers in a notice of motion or summons.
Considering that the application is self-made by the applicant and is essentially a re-hearing on sentence it would be fair for it to be determined without undue regard to mattesr of technicalities.
The substance of the application is that the death sentence imposed on the applicant by the trial court has since been declared unconstitutional by the Supreme Court in the now more than famous case of Francis Karioko Muruatetu & Another Vs. Rep(2018) eKLR.
Therefore, there is need to review the death sentence imposed on the applicant by the trial court in favour of a reasonable term of imprisonment or a non-custodial sentence.
[3] Indeed, the Murvatetu case (supra) opened a flood gate of application such as the present one. However, the Supreme Court did not outlaw the death sentence but its mandatory nature which “wrestled” the sentencing discretion from the courts and “pinned” it down. Otherwise, the death sentence was found to be Constitutionally, compliant and retained in the statutes.
It would therefore follow that the death sentence imposed on the applicant was lawful and may only be reviewed if an applicant gives good and satisfactory grounds to enable the court exercise discretion in his favour.
The trial court’s record shows that the applicant was given opportunity to mitigate despite the mandatory nature of the sentence at the time. He did indeed mitigate and prayed for leniency but the court’s hands were tied such that it could not impose a sentence other than the death sentence.
[4]The mitigating factors have been revisited herein and coupled with the new factors contained in the applicant’s submissions and the circumstances of the offence which clearly indicate that the victim was not subjected to any physical injury apart from being scared and threatened by the applicant who was in possession of a knife, this court finds the present application meritable on the basis that the sentence imposed on the applicant by the trial court was too harsh and oppressive that it requires to be altered, varied or substituted for a lesser sentence which must nonetheless have a deterrent effect. In that regard, the death sentence imposed by the trial court is hereby set aside and replaced with a term of fifteen (15) years imprisonment from the date of the sentence i.e. 17th August 2016.
Ordered accordingly.
J.R. KARANJAH
J U D G E
[Dated & Delivered this 24TH day of FEBRUARY 2022]