[2023] KEHC 26102 (KLR)

Kimotho v Republic (Criminal Petition 15 of 2018) [2023] KEHC 26102 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26102 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Petition 15 of 2018

DK Kemei, J

November 30, 2023

Between

Joseph Njogu Kimotho

Applicant

and

Republic

Respondent

(Arising from Nanyuki SRM Criminal Case No. 527 of 2004)

Ruling

1. The Applicant herein Joseph Njogu Kimotho was convicted in Nanyuki SRM Criminal Case No. 527 of 2004 for the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was sentenced to death as by law provided. His sentence was later commuted to life imprisonment by executive clemency.

2. The Petitioner’s first appeal to the High Court and second appeal to the Court of Appeal against both conviction and sentence were all dismissed.

3. On 14th December 2017, the Supreme Court of Kenya issued its judgment in Petitions Nos. 15 and 16 of 2015 (Consolidated), Francis Karioko Muruatetu & Another –vs- Republic & Others[2017] eKLR (now commonly called the Muruatetu Case. In that judgment, the apex court, inter alia, declared as unconstitutional the mandatory nature of the death sentence under section 204 of the Penal Code for the offence of murder contrary to section 203 as read with section 204 of the same Code.

4. Following the said declaration by the Supreme Court of Kenya, there followed an avalanche of applications for re-sentencing by persons convicted and sentenced for robbery with violence contrary to section 296(2) of the Penal Code, and others convicted of various offences under the Sexual Offences Act, 2006 that carried mandatory minimum sentences. The Applicant herein has lodged the present application under the foregoing circumstances.

5. The Applicant filed his application for resentencing on 20/11/2018 following the decision in Muruatetu. The Application was heard on 08/06/2021. The Applicant asked the court to sentence him to a definite term. The counsel for the Respondent in support of the application informed the court that the sentence of death was not appropriate in the circumstances of the case but a fairly stiff sentence of imprisonment would serve the ends of justice.

6. The matter was set for ruling on 15/07/2021. It is apparent that on 6th July 2021 the Supreme Court of Kenya issued directions regarding its aforesaid declaration in the Muruatetu Case. The first of those directions was –“The decision ofMuruatetu...(applies) only in respect to sentences (of death) for murder under sections 203 and 204 of the Penal Code.”

7. In the body of the “Directions of the Court” the apex court made it clear that its aforesaid declaration in the MuruatetuCase applied only to sentences of death passed upon convictions for murder under sections 203 and 204 of the Penal Code, and not to any other offences, not even to other offences carrying mandatory death sentences, like robbery with violence contrary to section 296(2) of the Penal Code.

8. That being the state of affairs now, this meant that courts could no longer consider the application for re-sentencing in robbery cases and others as it had no jurisdiction to do so upon the directions of the Supreme Court of Kenya dated 6/7/2021.

9. I have given due consideration to the application and submissions tendered. It is not in dispute that this matter would have been concluded on the 15th July, 2021 but for the Guidelines given by the Supreme Court of Kenya on the 6th July, 2021 as noted above. In the said guidelines, the court made it clear that the decisional law in Muruatetu case was an authority to declare all mandatory and minimum sentence unconstitutional and further went ahead to point out that its application was limited to offences of murder falling within its scope. It is noted that the petitioner herein had been convicted for an offence of robbery with violence contrary to section 296(2) of the Penal Code which is completely out of the scope contemplated under the Supreme Court’s Guidelines dated 6th July, 2021. That being the position, I find the request by the petitioner for resentencing on the basis of Muruatetu case (Supra) is without merit. The petitioner’s claim that several petitioners who had lodged their matters earlier had been considered for resentencing is not convincing in view of the fact once the Supreme Court gave directions, the courts below it must follow suit since the guidelines cleared any issues in controversy as regards the scope of the application of the decisional law in Muruatetu case (supra).

10. In view of the foregoing observations, it is my finding that the petitioner’s application for resentencing to be devoid of any merit. The same is dismissed.

DATED AND DELIVERED AT BUNGOMA (VIRTUALLY) THIS 30TH DAY OF NOVEMBER 2023. D.KEMEIJUDGE