[2020] KEHC 6808 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed under Section 296(2) of the Penal Code is unconstitutional as it removes judicial discretion and fails to account for individual circumstances. The petitioner, having served over 23 years, demonstrated...
Source-derived case information.
- Citation
- [2020] KEHC 6808 (KLR)
- Parties
- Appellant: Katana Charo Tsuri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition 21 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- sentence varied; petitioner released
- Judges
- DB Nyakundi
- Legal Topics
- Mandatory Death Sentence, Sentencing Discretion, Right to Human Dignity, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Katana Charo Tsuri
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence imposed under Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to a re-sentencing hearing and a substituted sentence based on time already served.
- 3 Whether continued incarceration violates the petitioner's right to human dignity under Article 28 of the Constitution.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed under Section 296(2) of the Penal Code is unconstitutional as it removes judicial discretion and fails to account for individual circumstances. The petitioner, having served over 23 years, demonstrated mitigation, reformation, and was a first offender. Continued incarceration would violate his right to dignity. The court affirmed the conviction but substituted the death sentence with a term equivalent to time served, ordering the petitioner's release unless otherwise lawfully held.
Court Disposition
sentence varied; petitioner released
Orders
- Conviction affirmed.
- Death sentence set aside and substituted with a sentence of 24 years already served.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
PETITION NO. 21 OF 2018
KATANA CHARO TSURI ......PETITIONER
VERSUS
REPUBLIC............................. RESPONDENT
CORAM: Hon. Justice R. Nyakundi
Ms. Sombo for the State
The petitioner in person
JUDGMENT
The petition is preferred on the following grounds:
1. That this Hon. Court must take cognizance of recent developments in law in this area and I apply it to the present case particularly because the same is advantageous to me the petitioner in its recent decision in FRANCIS KARIOKO MURUATETU AND ANOTHER V REP 2017 KLR the Supreme Court of Kenya, pronounced that the mandatory aspect of the death sentence was unconstitutional.
2. That the court therefore affectively removed the fetters placed on the courts discretion when passing sentence in cases which hitherto carried the death penalty as the only lawful sentence upon conviction.
3. That the decision by the supreme court allows the high court to interfere with the sentence upheld by the court of appeal in the interest of justice.
4. That the petitioner had fully mitigated before the trial court relying on that mitigation address and therefore humbly beg this hon. court to impose a sentence which is appropriate to the offence committed by me the petitioner and the circumstances surrounding the same.
5. That the petitioner was a first offender, with a young family I was taking care of I have reformed and the items robbed from the complainant were of modest value.
6. That I the petitioner has already been incarcerated for slightly over 23 years since I was arrested. I have already paid my debt to society and learned my lesson and I will never repeat again.
7. That throwing me the petitioner into prison cell for the rest of entire natural life as if I was a thing instead of a person without any continuing duty to respect my dignity which include the right to live in despair and helplessness and without hope of release would surely infringe my constitutional right to human dignity as provided under Article 28 of the constitution of Kenya 2010.
8. That the cost be provided for in favour of me the petitioner in any event has provided for in article 22 (1) (3) (c) of the constitution.
9. That I the petitioner therefore humbly prey that this hon. court to declare that the death sentence upheld upon me the petitioner by the Court of Appeal was unconstitutional in the circumstances of this case and the appropriate sentence that commends itself is one that already served since the time of arrest or any other orders this hon. court shall deem just fit and I so pray.
I affirm the principles in Muruatetu case {2017} eKLR which interalia provides for individualized sentences taking into account, the age, personal circumstances, gravity of the offence, aggravating factors, mitigation factors and any extenuating circumstances.
What Muruatetu observed was the mandatoriness of the death sentence sentence.
The petitioner in this case was convicted and sentenced pursuant to Section 296 (2) of the penal code. On the submissions at this sentencing re-hearing I order as follows:
(1). Conviction be affirmed.
(2). The sentence imposed of death be varied and substituted with the period of 24 years already served. The petitioner is set free unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 14TH DAY OF APRIL, 2020
..............................
R. NYAKUNDI
JUDGE