[2022] KEHC 12883 (KLR)

Karubwari v Republic (Miscellaneous Criminal Application 44 of 2019) [2022] KEHC 12883 (KLR) (9 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12883 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Criminal Application 44 of 2019

LN Mutende, J

September 9, 2022

Between

Paul Sendeu Karubwari

Applicant

and

Republic

Respondent

Ruling

1. Paul Sendeu Karubwari, the applicant, seeks resentencing following a conviction and sentence in HCCRC No.31 of 2015 where he was found guilty of Murder contrary to Section 203 as read with section 204 of thePenal Code and sentenced to suffer death as authorized by law. The record shows that the applicant appealed in Cr. Appeal No.68 of 2017 which was subsequently withdrawn by the applicant in order to pursue the instant application.

2. Facts presented were that the applicant, a habitual thief went to the home of the deceased intending to steal. He found the deceased and chased him around the house with a view of harming him. He inflicted a deep wound on his head with a view of killing him. Having failed to kill him instantly, he strangled him manually hence killing him.

3. The substratum of the application is that the mandatory death sentence has been declared unconstitutional by the case of Francis Karioko Muruatetu &another v Republic (2017) eKLR such that the applicant should be granted the opportunity to be heard on his mitigation.

4. In mitigation the applicant submits that he is a first offender; a young man whose life is greatly affected by imprisonment; and, he has taken advantage of the rehabilitative programmes offered at the correctional facility. He urged the court to consider what judges in other jurisdictions do by disregarding mandatory sentences which limit judicial discretion.

5. In response thereto, the State reiterated the manner in which the heinous offence was committed. It urged that the court had a higher duty of protecting the society from people who are a threat to the right of life.

6. I have considered rival submissions by both parties and authorities cited. The decision of the Supreme Court in the case Francis Karioko Muruatetu–vs- Republic 2017(eKLR) declared the death sentence unconstitutional and a violation of an accused person’s right to fair trial to the extent that he could not be heard on his mitigation.

7. In Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR, The Supreme Court stated as follows:“(18)Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below us as follows:i.The decision of Muruatetu and these guidelines apply only in respect to sentences of Murder under sections 203 and 204 of the Penal Code;ii.…….iii.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.vi.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.vii.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;(a)Age of the offender;(b)Being a first offender;(c)Whether the offender pleaded guilty;(d)Character and record of the offender;(e)Commission of the offence in response to gender-based violence;(f)The manner in which the offence was committed on the victim;(g)………(h)Remorsefulness of the offender;(i)The possibility of reform and social re-adaptation of the offender;(j)Any other factor that the Court considers relevant.viii.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing...”

8. A social evaluation report was filed by the Probation Department. The family of the applicant pleaded for review of the sentence, but, the victim’s family was not found to be interviewed.

9. In the case of Omuse v R [2009] KLR 214, the court held that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and the proper exercise of discretion in sentencing requires the court to consider that fact and circumstances of the case in their entirety before settling for any given sentence.

10. It is also important to point out that in exercising discretion in sentencing, the court must also have in mind the objectives of sentencing as laid down in the Sentencing Policy Guidelines, 2016 published by the Kenya Judiciary and which includes: -i.Retribution: To punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: To deter the offender from committing a similar offence subsequently as well as discourage other people from committing similar offences.iii.Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.iv.Restorative justice: To address the needs arising from criminal conduct such as loss and damages.v.Community protection: To protect the community by incapacitating the offender.vi.Denunciation: To communicates the community’s condemnation of the criminal conduct.

11. In this case, the applicant was a first offender who is stated to be of good conduct while in prison. Although the officer in charge of Prison stated that he was remorseful, this was not included in mitigating factors. At the outset he is stated to have been a pilfer. He had trespassed into the house, probably with the intention to steal when he was found by the deceased. The community should be protected from such an individual and the applicant should be deterred from committing future crimes.

12. In the result, taking into consideration circumstances in which the offence was committed, I set aside the sentence meted out which I substitute with a prison term of 36 years imprisonment, to be effective from the date of arraignment. (April 15, 2013).

13. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 9TH DAY OF SEPTEMBER, 2022. L. MUTENDEJUDGE