[2023] KEHC 26040 (KLR)

Mbiti v Republic (Criminal Miscellaneous Application E003 of 2021) [2023] KEHC 26040 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26040 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Miscellaneous Application E003 of 2021

JN Onyiego, J

November 17, 2023

Between

Eric Mwanza Mbiti

Applicant

and

Republic

Respondent

Ruling

1. The applicant herein together with others was tried and convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code and thereafter sentenced to suffer death. He later appealed together with the others to the high court and subsequently to the court of appeal where they lost.

2. Consequently, he filed misc.criminal application No.15 of 20 Garissa seeking resentencing based on the supreme court decision of Francis Muruatetu another Republic (2017) where the court commuted the death penalty to 20yrs imprisonment. Undeterred, the applicant filed the current application under certificate of urgency seeking for orders that the Honourable Court be pleased to review his sentence to a community service order for the reason that he has since served 15 years as part of his sentence.

3. The applicant relied on a report by the Garissa Main Prison in charge, Mr. Samuel Katana annexed to the application who stated that, the appellant is qualified for remission as provided for in the Prisons Act chapter 90 Revised Edition 2017. That the applicant qualified for a remission of 6 years and therefore due for release on 22. 12. 2023.

4. In arguing his case, he placed reliance on Petition No. 15 of 2015 Francis Karioko Muruatetu & Another. He thus contended that the Supreme Court held that mandatory sentences deprived courts their legitimate jurisdiction to exercise discretion to mete out an appropriate sentence and further, consider the accused person’s mitigation before meting out the said sentence. He thus urged this court to grant the prayers sought.

5. Directions were taken that the application be canvassed by way of written submissions.

6. The applicant in his oral submissions and thereafter written submissions prayed that this court be pleased to allow the application. That the remaining portion of his sentence be served via a community service order in line with the provisions of section 3(1) of the Probation Act.

7. The learned counsel for the prosecution orally submitted that this court ought to dismiss the application for the same lacks merit. It was argued that the applicant had previously filed a similar application which the court had dismissed.

8. I have considered the application herein together with the submissions by both parties. The only issue for determination is whether the order for resentencing can be granted.

9. The applicant has invoked the resentencing jurisdiction of this court as was laid down by the Supreme Court in Francis Kariuki Muruatetu &another v Republic Petition No. 15 and 16 of 2015 wherein the Learned Judges held that Section 204 of the Penal Code was unconstitutional in so far as it provided for the mandatory death sentence for the reasons that it limited the trial court’s exercise of discretion while sentencing. The court while remitting the matter to the High Court for re- hearing on sentence held that: -“The facts in this case are similar to what has been decided in other jurisdictions. Remitting the matter back to the High Court for the appropriate sentence seems to be the practice adopted where the mandatory death penalty has been declared unconstitutional. We therefore hold that the appropriate remedy for the petitioners in this case is to remit this matter to the High Court for sentencing...

10. This court having had regard to the Supreme court’s directions in reference to the case of Francis Karioko Muruatetu &another v Republic (supra) and bearing in mind The Sentencing Policy Guidelines, 2016 of the Judiciary, it is my considered view that this case does not deserve its discretion to review its earlier pronouncement. This court has already reduced the sentence from death penalty to 20 years based on Muruatetu case hence that prayer is spent. The court is thus functus officio as the applicant’s remedy lies elsewhere.

11. For the foregoing reasons, the applicant’s prayer for resentencing is hereby declined.

DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 17TH DAY OF NOVEMBER 2023. J.N. ONYIEGOJUDGE