[2024] KEHC 13470 (KLR)

Macharia v Republic (Miscellaneous Criminal Application 4 of 2019) [2024] KEHC 13470 (KLR) (23 October 2024) (Ruling)

Neutral citation: [2024] KEHC 13470 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Criminal Application 4 of 2019

DKN Magare, J

October 23, 2024

Between

Moses Gitonga Macharia

Applicant

and

Republic

Respondent

Ruling

1. This is a ruling over an application dated 13/6/2023 seeking rehearing of the sentence of life imprisonment imposed upon the Applicant.

2. The application is supported by the affidavit of the Applicant and it was deposed in material as follows:a.The Applicant was convicted of murder contrary to Section 203 as read with 204 of the Penal Code.b.The Applicant exhausted all appeals on conviction and sentence.c.The Applicant was not granted fair trial of sentencing.

Submissions 3. The Applicant filed submissions on 10/5/2023. It was submitted that sentence of life imprisonment did not consider sentencing guidelines and mitigation. He relied on Francis Karioko Muruatetu & Another vs Republic (2017) eKLR. He also relied on John Kirema Kaibi vs Republic (2018) eKLR which and submitted that the High Court sentenced a petitioner for 13 years imprisonment on the offence of murder.

4. The Respondent also filed submissions dated 17/7/2024. It was submitted that the petition lacked precision as propounded in the case of Anarita Karimi vs Republic (1976-1980) KLR 1271. As such, the Applicant did not provide details of how the fundamental rights and freedoms were infringed.

Analysis 5. The issue is whether the Applicant’s life sentence should be reduced. The Supreme Court opined in Francis Karioko Muruatetu & Another v Republic (2017) eKLR (Muruatetu I) that the mitigation factors that may reduce a sentence imposed by the law by no way replace judicial discretion.

6. It is a settled principle that mandatory sentences deprive courts of discretion to impose appropriate sentences and are thus arbitrary and unconstitutional.

7. The instant application is premised among others on Article 50(2)(q) of the Constitution. Discretion in sentencing is a matter of justice and pertains to fair trial. Therefore, a person who suffers this deprivation may claim violation of the right to appropriate or less severe sentence - a principle embodied in the Constitution including Article 50(2)(p) of the Constitution as follows:Every accused person has the right to a fair trial which includes the right:… to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.

8. The death sentence originally meted out on the Applicant was commuted to life imprisonment pursuant to the presidential decree. Re-sentencing merely provides an effective remedy to an injustice that may arise from a violation of a right or fundamental freedom. This was equally the view of this Court in Michael Kathewa Laichena & Another -v- Republic (2018) eKLR thus:“…by re-sentencing the petitioner, the High Court is merely enforcing and granting relief for what is in effect a violation caused by the imposition of the mandatory death sentence.’

9. As was held by the Court of Appeal in Thomas Mwambu Wenyi Vs Republic (2017) eKLR citing the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71:“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.

10. The Applicant is serving life imprisonment. This court has jurisdiction to reconsider the sentence meted upon the Applicant for the purposes of substitution. It was held in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Muruatetu II) that:In respect of other capital offences such as treason under Section 40(3) of the Penal Code, robbery with violence under section 296(2) of the Penal Code, and attempted robbery with violence under Section 297(2) of the Penal Code, a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in the decision in question could be reached.… All offenders who had been subject to the mandatory death penalty and desired to be heard on sentence were entitled to a re-sentencing hearing.Where an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn.

11. I also note that in Muruatetu II, the Supreme Court was categorical that the guidelines in Muruatetu I applied only with respect to sentences of murder under Sections 203 and 204 of the Penal Code.

12. The question of the constitutionality of death sentence is settled with ramifications that death sentence is unconstitutional. Subsequent jurisprudence has also determined that life imprisonment is equally unconstitutional and courts have remitted life sentences to a determinate period of time. This emerging jurisprudence is a product of a purposive reading of Articles 27 and 28 of the Constitution as applied to sentencing. In interpreting these provisions, the Court of Appeal in Malindi Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso v Republic (Judgment 7/7/2023) (unreported)stated as follows:...we are of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017 eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under article 27 of the Constitution. In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter & Others vs The United Kingdom (Application nos. 66069/09, 130/10 and 3896/10) 120161 Ill ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.”

13. In Muruatetu I, the Supreme Court referred to the case of Vinter and others v. the United Kingdom (Applications nos. 66069/09, 130/10 and 3896/10) in which the Court held that:“111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment.

14. Similarly in State vs. Tom, State v. Bruce (1990) SA 802 (A), Smalberger, JA, writing for the majority of Supreme Court of South Africa, made the following pertinent observations about sentencing in general and mandatory sentences in particular:“The first principle is that the infliction of punishment is pre-eminently a matter for the discretion of the trial court ... That courts should, as far as possible, have an unfettered discretion in relation to sentence is a cherished principle which calls for constant recognition. Such discretion permits of balanced and fair sentencing, which is a hallmark of enlightened criminal justice. The second, and somewhat related principle, is that of the individualization of punishment, which requires proper consideration of the individual circumstances of each accused person. This principle too is firmly entrenched in our law... A mandatory sentence runs counter to these principles. (I use the term “mandatory sentence” in the sense of a sentence prescribed by the legislature which leaves the court with no discretion at all -either in respect of the kind of sentence to be imposed or, in the case of imprisonment, the period thereof.) It reduces the court’s normal sentencing function to the level of a rubber stamp. It negates the ideal of individualization. The morally just and the morally reprehensible are treated alike. Extenuating and aggravating factors both count for nothing. No consideration, no matter how valid or compelling, can affect the question of sentence... Harsh and inequitable results inevitably flow from such a situation. Consequently, judicial policy is opposed to mandatory sentences...as they are detrimental to the proper administration of justice and the image and standing of the courts.”

15. The Court also cited Mithu Singh vs. State of Punjab, 1983 AIR 473, in which the Supreme Court of India considered the constitutionality of a provision of law prescribing a mandatory sentence of death that was challenged. In holding that the provision was unconstitutional, the Court stated as follows:“...a provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. It has to be remembered that the measure of punishment for an offence is not afforded by the label which that offence bears, as for example ‘Theft, Breach of Trust’ or ‘Murder’. The gravity of the offence furnishes the guideline for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, its motivation and its repercussions. The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. Equity and good conscience are the hall-marks of justice. The mandatory sentence of death prescribed by section 303, with no discretion left to the court to have regard to the circumstances which led to the commission of the crime, is a relic of ancient history. In the times in which we live, that is the lawless law of military regimes. We, the people of India, are pledged to a different set of values. For us, law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances of the crime, the criminal shall be hanged by the neck until he is dead.”

16. In arriving at its decision this Court is similarly guided by the decision of the Constitutional Court of Uganda in Susan Kigula & 417 Others vs. Attorney General, Const. App. No. 3 of 2006 that:“The legislature has all the powers to make laws including prescribing sentences. But it is the duty of the courts to ensure that the sentences so prescribed are imposed in accordance with the Constitution.”

17. I therefore have no doubt that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to.

18. The Supreme Court of Appeal of South Africa in S v Nkosi & others 2003 (1) SACR 91 (SCA) considered the constitutionality of the sentence where trial court had sentenced the appellants to terms of imprisonment of 120 years, 65 years, 65 years and 45 years respectively. The Court stated at para 9 as follows:Thus, under the law as it presently stands, when what one may call a Methuselah sentence is imposed (i.e. a sentence in respect of which the prisoner would require something approximating to the longevity of Methuselah if it is to be served in full) the prisoner will have no chance of being released on the expiry of the sentence and also no chance of being released on parole after serving one half of the sentence. Such a sentence will amount to cruel, inhuman and degrading punishment which is proscribed by s 12(1)(e) of the Constitution of the Republic of South Africa Act 108 of 1996. The courts are discouraged from imposing excessively long sentences of imprisonment in order to avoid having a prisoner being released on parole. A prisoner serving a sentence of life imprisonment will be considered for parole after serving at least 20 years of the sentence, or at least 15 years thereof if over 65 years, according to the current policy of the Department of Correctional Services. A sentence exceeding the probable life span of a prisoner means that he [or she] will have no chance of being released on the expiry of the sentence and also no chance of being released on parole after serving one half of the sentence. Such a sentence will amount to cruel, inhuman and degrading punishment.

19. Back home, the Court of Appeal in Ayako v Republic (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023) (Judgment) stated as follows:On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment.

20. Based on the above discourse, I am persuaded that this is a proper case for me to exercise my discretion to rehear life imprisonment pursuant to the presidential decree. I find legal basis on which to exercise my discretion in favour of the Applicant. The Respondent submitted that the petition fell short of the precision required as per Anarita Karimi Case (supra). This is a rehearing of sentence and what the Applicant had to demonstrate is that he was service a sentence that is not consistent with the quoted constitutional provisions. There is no dispute that he was convicted and is now serving life sentence. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:“Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains”.

21. The court of appeal dealt with the appeal to finality. The court is therefore involved in equating the life sentence that was introduced administratively by the committee on mercy in 2016. In hearing the appeal the Court of Appeal noted as follows as reported in Moses Gitonga Macharia V Republic [2011] eKLR: -There was medical evidence from Dr. Ndaru who performed the post mortem on the deceased that the act of “strangulation” crushed all tracheal rings of the respiratory system and caused bruises on the neck and chest. It also caused bleeding which went into the lung cavity. Whoever it was that committed that act, was not, in our view, merely engaged in a love embrace which went awry. He intended to cause grievous harm or death as defined in section 206 and we find no impropriety in the trial court drawing that conclusion from the facts of the case. Malice aforethought is subject of the human mind which is difficult to prove by direct evidence because what is in the mind of one is difficult to discern by another, but can be inferred from surrounding circumstances of the incident under investigation. See R v Tubere [945] 12 EACA 63. Malice aforethought was established from the circumstances in this case.

22. This court set out the pertinent facts related to the commission of the offence as doth: -At about 7 p.m. on 16th May 2005, Bernard Kinyua Mwangi (PW3) (Bernard), who was the accountant cum Manager of South Tetu Bar & Restaurant, was at the Restaurant watching television when a man came there in the company of the deceased. He knew the deceased as a frequent customer at the bar but did not know the man. They sat at the same table where he was, about 2 – 3 feet on the opposite side. The man was wearing a “kofia” - a cap with a protrusion or canopy - and sat near some pillar. He ordered two beers, one for him and one for the deceased, and they started drinking. At some point the deceased removed the kofia worn by the man when she wanted to embrace him and that is when Bernard was able to get a good look at him. He saw that the man had a mark looking like a scar at the back of his head. He also noticed that the man had a goldish looking tooth, when he was laughing. His ears were also peculiar, as if they were facing the front. At about 8 p.m. the deceased and the man went out of the restaurant and Bernard remained there until closing time at 11 p.m. when he went home.The following day, Bernard was called by one of the workers at the business and told to go to Room 12. There he found the body of a female lying on a bed with her tongue sticking out. He recognized her as the deceased. He also saw two condoms lying on the floor, and her clothes which were in the bathroom. He called the police who arrived at the scene.It would appear that after the man and the deceased left the restaurant area, the deceased went upstairs to Kanini Bar where Alice Wanjiru Mureithi (PW4) (Alice) was selling beer at the counter. The deceased went up to her and asked for a packet of Trust condoms which she was given and went downstairs telling Alice she was going to look for a client. Afterwards, the deceased went back to Kanini bar holding a bottle of soda with a man holding a bottle of pilsner. He was also wearing a greenish shirt with a kofia. They sat in the bar and the man ordered two beers. He gave out Kshs.100/= but Alice took sometime to refund the change whereupon the man went up to her to demand his change. It was at that time that Alice noticed the man had a false tooth on the left upper side. By about 10 p.m. they left and Alice continued to serve other customers until closing time. The following day she was called by the cleaners in the building to go to Room 12. There she found the half naked deceased who did not respond to her calls and on touching her she found her cold. She saw used Trust condoms on the floor, and her clothes in the bathroom.Another commercial sex worker in the town, K.N.W (PW 6) (K) also visited South Tetu Bar & Restaurant on 11th May 2005 at about 8. 30 p.m. and found the deceased and the same man drinking. After about one hour she left to go Seven Stars Bar but returned to South Tetu Bar at about 11 p.m. and found the deceased and the man having moved from the ground floor to Kanini bar. At some point, K met the man at the urinal and asked him to buy her a soda. The man started beating her up saying Nyeri women think they are very smart but they are going to see. The watchman overheard the noise and cautioned them. K went back to Seven Stars Bar.The watchman was Thomas Owino Otieno (PW 9) (Owino). He recalled that on the day in question he was on duty and at about 9 p.m. he saw a man with the deceased whom he knew as a frequent visitor in their bar. They went in and started drinking. At some point the man tried to go out of the bar with a bottle of beer but Owino told him he could not do so. He even unsuccessfully tried to bribe Owino with some money. The man went back to Kanini bar where he was drinking with the deceased. Owino had seen them at the bar at 11 p.m. as he did security rounds but did not see them at 12 midnight when he went back there. He did not see them leave the premises through the main entrance which he was guarding that night. At about 7. 10 a.m. the following morning Owino saw the man whom he had seen with the deceased the previous night leaving the premises and the man greeted him.The room attendant who rented out Room 12 also testified. She was Theresa Nduta Gichuhi (PW 5) (Theresa). She had been working for two weeks but used to see the deceased who used to frequent the bar with other patrons. At about 10 p.m. on the day in question, a man went up to her and asked for a room. She assigned him Room 12, took him there and showed him the room. He was accompanied by the deceased. The man had a fair complexion, and a shiny silverish false tooth. He also had a clean shaven head with a scar at the back of his head. He was not wearing a hat. His ears were also peculiar, bigger than normal. Theresa left the two in Room 12. The following morning, Theresa joined another room attendant in changing bedding in the rooms when upon reaching Room 12 they knocked several times without response. On pushing the door open they found the lifeless body of the deceased and immediately informed the management which called the police.About one month later on 8th June 2005, C.N.K (PW 12) (C), another commercial sex worker in Nyeri met a man at Seven Stars Bar. It was 6 a.m. in the morning. The man called her and told her to order whatever she wanted from the bar. Before C could do so, K (PW 6) arrived at the bar and saw them together. K called C outside and warned her that the man was not good as he was suspected of having killed a girl at South Tetu Bar. They rushed to South Tetu Bar and summoned Owino (PW9) and they headed to Seven Stars Bar. Owino found the man seated alone at a corner with ½ a bottle of beer. There were other people at the counter. Owino patted the man’s shoulders, he looked up and Owino greeted him. He asked him whether he knew him and the man said yes he had been seeing him. Owino noticed that the man had the same silverish tooth he had seen earlier. C also noticed the shiny tooth. Owino asked the man to accompany him. Fortunately, a police officer in plain clothes was among the customers in the bar that morning, PC Simon Ruto Mutahi (PW 14) (PC Ruto). He was on crime observation duties when Owino approached him and told him he needed assistance to take the man to the Police Station. Ruto found the man dozing on his chair in a drunken state and observed that he had a glittering tooth. The man gave his names as Moses Gitonga. With the assistance of Owino, PC Ruto arrested the man and they led him towards Nyeri Police Station. On arrival at the station, however, the silverish tooth had disappeared!

23. The facts disclose a viscous predator whose heinous acts were premeditated and as such deserved the death penalty. Unfortunately, the committee of mercy commuted the same. It is important that the blanket reduction of sentences be avoided in order not to release to the public persons who are best suited for the gallows or permanent residence in prison.

24. The Applicant was not remorseful until the end. There are no rights that have been denied. The only reason for reviewing is the position taken by the Court of Appeal on issues of life sentence. It could be important that the Supreme Court guides this court on that particular aspect as life sentence was hitherto found to be a lawful sentence in Muruatetu. It is unclear whether the Court of Appeal overturned the Supreme Court decision or had a different issue relating to indeterminate sentence.

25. The petition to the extent of challenging the unconstitutionality of life sentence is self-defeating, as the best way is to revert to the death penalty, which is still a lawful sentence. The court is not minded to do so.

26. The sentence was deserving. However, there has been Court of Appeal which interpreted what life imprisonment is. In Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA) (unreported) translated life imprisonment to 30 years.

27. In the case of Barasav Republic (Criminal Appeal 219 of 2019) [2024] KECA 324 (KLR) (15 March 2024) (Judgment), the Court of Appeal stated as follows: -“Given the circumstances in which the offence was committed, the complainant being a young girl whom the appellant as the stepfather ought to have protected but instead violated, the appellant deserved a deterrent sentence. The sentence of life imprisonment was an option which was available in the exercise of discretion in sentencing and would in our view have been appropriate.13. In accordance with our decision in Evans Nyamari Ayako v Republic (supra), translating life imprisonment to a term sentence of 30 years’ imprisonment, we allow the appellant’s appeal; on sentence to the extent of substituting the sentence of life imprisonment that was imposed on the appellant with a term sentence of 30 years’ imprisonment. The sentence of 30 years shall be calculated from the date the appellant was first arraigned in court in accordance with Section 333(2) of the Criminal Procedure Code.

28. In Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment), the Court of Appeal sitting in Malindi (Nyamweya, Lesiit and Odunga, JJA) held that life imprisonment is unconstitutional and substituted the same with 40 years. They stated as follows: -“We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature…… We are therefore of the view that while the appellant should be given the opportunity for rehabilitation, he also merits a deterrent sentence. We, therefore in the circumstances, uphold the appellant’s conviction of defilement, but partially allow his appeal on sentence. We accordingly set aside the sentence of life imprisonment imposed on the appellant and substitute therefor a sentence of 40 years in prison to run from the date of his conviction.”

29. It is therefore my understanding that in each case we shall translate what life imprisonment means. In this case a sentence of 50 years translates to life imprisonment.

30. I therefore substitute the life sentence, with its equivalent, that is 50 years. The period shall run as per Section 333(2) of the Criminal Procedure Code from date of arrest.

31. In the circumstances the appellant’s conduct is heinous and deserves rightfully a life sentence. The Court of Appeal has directed that the sentences be translated. The appellant’s life sentence is equated to 50 years.

Determination 32. I therefore make the following orders: -a.The sentence of life imprisonment is substituted with a sentence of 50 years imprisonment with effect from the date of arrest on 8/6/2005. b.The sentence shall take into account the time spent in custody since the arrest of the Applicant.

DELIVERED, DATED AND SIGNED AT NYERI ON THIS 23RD DAY OF OCTOBER, 2024. Ruling delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of:-Mr. Mwakio for the StateApplicant in personCourt Assistant – JedidahM. D. KIZITO, J.