[2023] KEHC 26416 (KLR)

Korir v Republic (Miscellaneous Criminal Application E018 of 2023) [2023] KEHC 26416 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26416 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Application E018 of 2023

HM Nyaga, J

December 14, 2023

Between

Justice Korir

Applicant

and

Republic

Respondent

Ruling

1. The Applicant Justice Korir jointly with another person not involved in this application was charged with four counts. Namely;Count 1:Preparation to commit a felony contrary to Section 308(1) of the Penal Code Particulars: On the 3rd October,2017 at Kapkembu Village in Kuresoi South Sub-County of Nakuru County jointly with others not before court was found armed with offensive weapons namely maasai sword, panga, bolted head rungus and wooden spear made of bamboo tree in circumstances that indicate that you were so armed with intent to commit a felony namely Grievious harm.Count 2:Assault causing actual bodily harm contrary to Section 251 of the Penal Code Particulars: On 3rd October, 2017 at Kapkembu Village in Kuresoi South Sub-County of Nakuru County jointly assaulted Joseph Kibet Barno thereby occasioning him actual bodily harm.Count 3:Assault causing actual bodily harm contrary to Section 251 of the Penal Code Particulars: On 3rd October, 2017 at Kapkembu Village in Kuresoi South Sub-County of Nakuru County jointly assaulted Stanley Kemoi Kipkoech thereby occasioning him actual bodily harm.Count 4:Assault causing actual bodily harm contrary to Section 251 of the Penal Code Particulars: On 3rd October, 2017 at Kapkembu Village in Kuresoi South Sub-County of Nakuru County jointly assaulted Peter Rotich thereby occasioning him actual bodily harm.

2. After a full hearing, the Applicant was convicted in respect to Count one and three only and sentenced to serve 7 years and 12 months imprisonment respectively. The sentences were to run concurrently.

3. Being dissatisfied with the trial court’s decision, he lodged an appeal against both conviction and sentence before this court vide Criminal Appeal No. E020 of 2021. However, the same was dismissed on 25th January, 2023.

4. On 7th February, 2023 he filed an undated Application seeking for sentence rehearing. He averred that this court has jurisdiction to hear re-sentencing and met out appropriate sentence in line with Article 165 of the Constitution of Kenya and that this court is bound by the Supreme Court decision under Article 163(7) of the Constitution.

5. When the matter came up for mention on 23rd November, 2023 the applicant told court that the matter was settled through Alternative Justice System (AJS). I then summoned the complainant to confirm this position. On 30th November, 2023 Peter Rotich who was one of the complainant told court that he had forgiven the Applicant. I do not however that the Applicant was not convicted under the fourth count that involved the complainant herein.

6. The state counsel on her part told the court the only pending sentence is in respect to Count 1 and urged this court to consider resentencing the same.

Analysis & Determination 7. The only issue that arises for determination is whether the Applicant’s plea for resentencing is merited.

8. In respect to Count 1, the applicant was charged under Section 308(1) of the Penal Code which provides that –“Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment for not less than seven years and not more than fifteen years”

9. The Applicant was sentenced to serve 7 years imprisonment.

10. The issue of mandatory sentences was addressed in Francis Karioko Muruatetu & others vs Republic (2017) eKLR (Muruatetu 1) where the Supreme Court held that the mandatory death sentence prescribed for the offence of Murder by section 204 of the Penal Code was unconstitutional. The Court took the view that:“Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives that the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.”

11. In clarifying the import case of its earlier decision, in Muruatetu 2 the Supreme Court gave the following guidelines:“Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below as follows –i.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under section 203 and 204 of the Penal Code.ii.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu.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.iv.Where an appeal is pending before the court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.v.In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code as well as those of the victim before deciding on the suitable sentence.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 offenderb.Being a first offenderc.Whether the offender pleaded guilty.d.Character and record of the offendere.Commission of the offence in respect of gender based violence.f.The manner in which the offence was committed on the victim.g.The physical and psychological effect of the offence on the victim’s family.h.Remorsefulness of the offender.i.Possibility of reform and social adaptation of the offender.j.Any other factor the court considers relevant.k.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.l.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.

12. In light of the fact that there is no evidence of pending appeal before any court in regards to this matter and of the directions under paragraph (iii), (vi) & (viii) I am of the opinion that this court is clothed with jurisdiction to determine this application.

13. Subsequent to the above decision, a lot of emerging jurisprudence has come to the fore on the question of these so called mandatory sentences in other offences other than murder.

14. For instance, in Fappyton Mutuku Ngui vs Republic [2019] eKLR the court directed the trial court to rehear the Applicant’s sentence on grounds that following the decision in the Muruatetu case several decisions have been made by various courts wherein minimum sentences imposed have been tampered with as a result.

15. The court in Hashon Bundi Gitonga vs Republic [2020] eKLR held that minimum sentence portends real possibility of a harsher or excessive sentence being imposed on an individual who would after mitigation be entitled to a lesser sentence. That therein lays prejudice.

16. From the foregoing, it is indeed correct to state that by prescribing mandatory sentences, the Penal Code takes away a court’s discretion to impose a sentence it considers appropriate in any given circumstances.

17. In this case The Appellant in mitigation told court that“I pray for forgiveness as I have young child who needs education so not to land in problems and I have done so and I am the one providing for the children and the wife had recently delivered”

18. In sentencing the Applicant the court stated that: -“Each accused’s mitigation is noted, however the nature of the offence is as well noted in that they could have caused more harm to the members of public present as such in order to act as a deterrent each accused in relation to 1st count shall serve 7 years imprisonment”

19. It is clear that in meting out the minimum sentence as required by the Act, the court did not exercise any discretion. Now it is settled that even where the so called mandatory sentences are prescribed, the court has discretion to mete out any other sentence that it deems fit and just in the circumstances.

20. Flowing from the above, I have considered the above mitigation and also the fact there was no evidence that the Applicant was a repeat offender.

21. Therefore, I proceed to order that the sentence of 7 years imprisonment imposed on 19th July, 2021 is hereby set aside and resentence the applicant to 6 years imprisonment. The sentence will run from the date the applicant was first remanded in lawful custody i.e. 5th October, 2017.

22. Having served his full sentence, the applicant is now set at liberty unless lawfully held.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 14TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutMurunga for stateAccused present