[2023] KEHC 26207 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the applicant was unconstitutional. Despite the absence of the original trial record, the court accepted the applicant's submissions and noted that the prosecution did not dispute the withdrawal of the...
Source-derived case information.
- Citation
- [2023] KEHC 26207 (KLR)
- Parties
- Applicant: Douglas Musa Litunya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E018 of 2023
- Procedural Posture
- Criminal Petition / Resentencing Application After Conviction and Sentence
- Outcome
- application allowed; sentence varied
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Sentences, Murder Conviction, Mitigation, Unconstitutional Penalties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Douglas Musa Litunya
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing Application After Conviction and Sentence
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Muruatetu declaring the mandatory death sentence unconstitutional.
- 2 Whether the absence of the original trial record precludes the court from considering the resentencing application.
- 3 Whether the applicant's mitigation and circumstances warrant a lesser sentence.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the applicant was unconstitutional. Despite the absence of the original trial record, the court accepted the applicant's submissions and noted that the prosecution did not dispute the withdrawal of the appeal to pursue resentencing. The court considered the mitigation raised and the general circumstances, concluding that the applicant deserved resentencing. The original death sentence was set aside, and the applicant was resentenced to 30 years imprisonment, effective from the date of the initial sentence.
Court Disposition
application allowed; sentence varied
Orders
- The application for resentencing is allowed.
- The sentence of death imposed by the trial court is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
Litunya v Republic (Criminal Petition E018 of 2023) [2023] KEHC 26207 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KEHC 26207 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Petition E018 of 2023
DO Ogembo, J
November 30, 2023
Between
Douglas Musa Litunya
Applicant
and
Republic
Respondent
Ruling
1. By way of an application filed herein on 30-3-2023, the applicant Douglas Musa Litunya, has applied for resentencing before this court. The application is brought under Section 333(2) of the Criminal Procedure Code and also in the matter of the Supreme Court decision in Petition Nos 15 and 16 of the 2015, Francis Karioko Muruatetu & Others v R. He has pleaded for a lenient sentence. In the submissions the applicant has filed, he has expressed remorse and raised several factors of mitigation.
2. The prosecution has opposed this application on the basis that it is an abuse of the process of the court since this court already rendered its decision on this issue and applicant can only appeal to the Court of Appeal.
3. I have considered this application and the submissions made by the 2 parties. In his own submissions, the applicant was charged, tried and convicted of the offence of Murder contrary to section 203 as read with section 204 of the Penal Code. He was sentenced to death. This was on 30-6-2011. He has now applied to this court for resentencing following the decision of the Supreme Court in the Muruatetu case that declared mandatory death sentence to be unconstitutional.
4. This court is handling this matter without the benefit of perusing any record of proceedings leading to the sentence of the applicant. The Hon. Lady Justice Aburili in Misc. Criminal Application No. E006/2023 already found that the original trial file of the applicant is not traceable in the court registry.
5. However, the applicant has submitted that he withdrew the appeal he had filed at the Court of Appeal so as to pursue resentencing before the court. The Prosecution has not disputed this fact.
6. Having been sentenced under the old legal regime in which minimum sentences were deemed to be mandatory. I agree with the applicant that this is a case deserving of resentencing.
7. I have considered the mitigation that accused raised at the trial and general circumstances of this case. I allow this application of the applicant filed herein on 30-3-2023 and set aside the sentence of the trial court. I sentence the applicant to serve 30 years imprisonment. This sentence shall run from the date of his initial sentence on 30-6-2011. It is so ordered.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 30TH DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGE30. 11. 2023Court:Ruling read out in court in the presence of the applicant and Mr. Kubebea for the StateD.O. OGEMBOJUDGE30. 11. 2023