[2023] KEHC 20350 (KLR)
The court found that the applicant was entitled to re-sentencing following the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, which declared the mandatory death sentence for murder unconstitutional. The court considered the applicant's mitigation, including his remorse, and...
Source-derived case information.
- Citation
- [2023] KEHC 20350 (KLR)
- Parties
- Applicant: Henry Likhanga Lumiti; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 97 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Re Sentencing Application
- Outcome
- application for re-sentencing allowed; death sentence set aside and substituted with 30 years imprisonment.
- Judges
- WM Musyoka
- Legal Topics
- Re Sentencing, Mandatory Death Sentence, Murder Conviction, Mitigation, Unconstitutionality of Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Likhanga Lumiti
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Re Sentencing Application
Legal Issues
- 1 Whether the applicant is entitled to re-sentencing following the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR.
- 2 What sentence is appropriate in light of the applicant's mitigation and the trial court's findings.
Ratio Decidendi
The court found that the applicant was entitled to re-sentencing following the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, which declared the mandatory death sentence for murder unconstitutional. The court considered the applicant's mitigation, including his remorse, and the trial court's observation that the applicant's actions were reckless and unprovoked. Balancing these factors, the court set aside the death sentence imposed on November 2, 2010, and substituted it with a sentence of imprisonment for 30 years, with credit for time spent in remand custody.
Court Disposition
application for re-sentencing allowed; death sentence set aside and substituted with 30 years imprisonment.
Orders
- The death sentence imposed on November 2, 2010 is set aside.
- The applicant is sentenced to imprisonment for 30 years.
Full Case Text
Judgment text and source record
19 paragraphs
Likhanga v Director of Public Prosecutions (Miscellaneous Criminal Application 97 of 2019) [2023] KEHC 20350 (KLR) (21 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20350 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application 97 of 2019
WM Musyoka, J
July 21, 2023
Between
Henry Likhanga
Applicant
and
Director of Public Prosecutions
Respondent
Ruling
1. On November 12, 2021, I had directed the Deputy Registrar to serve a copy of the ruling on the County Director of Probation and Aftercare Services, so that he could have a re-sentencing report done, after considering the antecedents of the applicant, and taking the views of the family of the deceased, as well as those of the community. That was never done. I need to bring closure to the matter.
2. The applicant was convicted on November 2, 2010, of murder, in Kakamega HCCRC No 32 of 2005. Sentence was pronounced the same day. He was condemned to death. The decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ & VP, Ojwang, Wanjala, Njoki & Lenaola SCJJ) had not yet been made, and so the trial Judge had no discretion in the matter, and imposed the mandatory sentence, death.
3. The application herein, which is undated, seeks re-sentencing, in view of Francis Karioko Muruatetu & another vs Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ). I note that in mitigation, on November 2, 2010, it was stated that the applicant was remorseful , and was asking for leniency. In response, the trial court noted that the actions by the applicant were reckless and unprovoked, and he deserved no mercy.
4. As the death sentence was pronounced unconstitutional in Francis Karioko Muruatetu & another vs Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), I believe that this is a proper case for re-sentencing. I have noted the mitigation, and the sentiments by the trial court. In view of that, I set aside the death sentence imposed, on November 2, 2010, and substitute it with a sentence of imprisonment for 30 years. The time spent in remand custody shall be taken into account.
RULING DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 21ST DAY OF JULY 2023W M MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesHenry Likhanga Lumiti, the applicant, in person.Ms. Kagai, instructed by the Director of Public Prosecutions, for the respondent.