[2022] KEHC 13905 (KLR)

Kwata v Republic (Criminal Petition 8 of 2018) [2022] KEHC 13905 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13905 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Petition 8 of 2018

SN Riechi, J

October 4, 2022

IN THE MATTER OF RE HEARING OF SENTENCE UNDER ARTICLES 22(1), 1(1)(3), 2(4), 19(3), 25, 26(1), 27(1), 50(2)(9), 159(1), 160(1) AND 165(3) (b) OF THE CONSTITUTION OF KENYA AND SECTIONS 26 OF THE CRIMINAL PROCEDURE CODE CAP. 75 LAWS OF KENYA AND IN THE MATTER OF SECTION 134, 137(A)(i)(ii)(iii)(v) B(i)(ii) OF THE CRIMINAL PROCEDURE CODE AND 296(2) OF THE PENAL CODE

Between

Stephen Sifuna Kwata

Petitioner

and

Republic

Respondent

Judgment

1. By his petition filed in court on July 25, 2018, the petitioner seeks the following orders;a.The honourable court be pleased to evaluate and give an appropriate sentence having heard the mitigation factors in accordance with article 50(2)(p) of the Constitution of Kenya, 2010. b.This petition is filed in conformity with the judgement of the Supreme Court of Kenya Petition No 15 of 2015 of Francis Karioko Muruatetu & another judgement delivered on December 4, 2017 subject to remission rules.c.That the petitioner has exhausted all the appeal avenues and was not accorded a fair and impartial trial of sentence as from the trial court up to the highest court contravening the above mentioned article while relying on the case of Douglas Muthaura Ntoribi vs Republic (2018)eKLR and Republic vs John Nganga Gacheru (2018)eKLRd.Such other orders as setting him free for he has already served 9 years without remission or as the court may deem fit.

2. The petition was disposed of by way of written submissions. Both parties complied, the same are on record and have been given the due consideration.

3. The salient facts in the matter herein are that the petitioner with another were charged in Bungoma Chief Magistrate’s Court (Criminal Case No 1564 of 2009) with the offence of robbery with violence. The court after taking evidence sentenced them to suffer death. Dissatisfied, they appealed to the High Court vide Criminal Appeal No 121 & 122 of 2010 (consolidated) where the learned judges (Onyancha & Muchemi JJ) found no merit in the appeal and confirmed both the conviction and sentence.

4. Still dissatisfied, the petitioner appealed to the Court of Appeal in Eldoret vide Criminal Appeal 204 of 2011 where the learned judges of appeal (Maraga, Musinga & Gatembu Kairu JJA) similarly dismissed the appeal and confirmed both the conviction and sentence.

5. It is a fact that the petitioner is no longer on death row, the sentence having been commuted to life imprisonment by the President of the Republic. It is therefore a misconception for the petitioner to state that the sentence ought to be reviewed and or set aside.

6. Looking at the petition, the gist of the matter is that having exhausted the appeal mechanism as provided by law, the petitioner wishes to have this court review the sentence on the strength of Muruatetu case (supra) which found the mandatory nature of death sentence unconstitutional. On the other hand, the petitioner seems to challenge the manner in which the courts handled his case.

7. Three issues are worth mention at this juncture, first, the Supreme Court on July 6, 2021, due to the rampant and often wrongful invocation of the decisional authority gave directions to the effect that;The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of thePenal Code;

8. The second issue is that the decisions of the Court of Appeal are binding to the High Court as per the constitutionally entrenched hierarchy of courts under article 164 which creates the Court of Appeal and clothes it with jurisdiction to hear and determine appeals from this court. It is also worth mentioning that the decisions of the Court of Appeal are binding to this court and I cannot review and or vary such sentence in the absence of clear provisions.

9. The petition is expressed to be brought under the provisions of article 165(3) of the Constitution which delineates the jurisdiction of this court. The petitioner has not clearly stated how his rights have been infringed and or shown the specific provisions of the Constitution that were breached during the trial.

10. It is a cardinal principle of constitutional litigation that a party claiming infringement of a constitutional right ought to set out with clarity, the constitutional rights allegedly infringed and the manner in which the rights have been infringed. In the celebrated case of Anarita Karimi Njeru v Republic (1979)eKLR, the test was stated thus;'We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.'

11. Taking into account all the relevant facts set out herein, the rival submissions and the law, I find not merit in the petition for the reasons stated in the preceding paragraphs and the petition is hereby dismissed.

DATED AT BUNGOMA THIS 4TH DAY OF OCTOBER, 2022SN RIECHIJUDGE