[2022] KEHC 15389 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence is unconstitutional as it removes judicial discretion. The court therefore has the power to review and impose an appropriate sentence based on the circumstances of the case. In this matter, the applicant murdered...
Source-derived case information.
- Citation
- [2022] KEHC 15389 (KLR)
- Parties
- Applicant: James Nyamohanga Michael; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Petition E038 of 2021
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition partially allowed
- Judges
- RPV Wendoh
- Legal Topics
- Sentencing Review, Mandatory Death Sentence, Remand Period Credit, Judicial Discretion, Murder, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Nyamohanga Michael
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence is unconstitutional and if the applicant is entitled to resentencing.
- 2 Whether the period spent in remand should be considered in sentencing under Section 333(2) of the Criminal Procedure Code.
- 3 Whether the circumstances of the offence warrant a reduction or alteration of the sentence.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence is unconstitutional as it removes judicial discretion. The court therefore has the power to review and impose an appropriate sentence based on the circumstances of the case. In this matter, the applicant murdered his wife in cold blood, inflicting multiple fatal wounds based on suspicion of infidelity, which the court found to be an aggravated circumstance warranting a severe and deterrent sentence. However, the court also considered the period of approximately four years the applicant spent in remand, as required by Section 333(2) of the Criminal Procedure Code. Consequently, the court...
Court Disposition
petition partially allowed
Orders
- The death sentence imposed on the applicant is set aside.
- The applicant is sentenced to forty (40) years imprisonment from 17/2/2017.
Full Case Text
Judgment text and source record
20 paragraphs
Michael v Republic (Petition E038 of 2021) [2022] KEHC 15389 (KLR) (15 November 2022) (Judgment)
Neutral citation: [2022] KEHC 15389 (KLR)
Republic of Kenya
In the High Court at Migori
Petition E038 of 2021
RPV Wendoh, J
November 15, 2022
Between
James Nyamohanga Michael
Applicant
and
Republic
Respondent
Judgment
1. James Nyamohanga Michael, has brought this petition pursuant to Articles 19,21,22,23,25 (c ) 27 (1) (2) and (4), 50 (2), 159,160 and 165 (3) of the Constitution and Section 333 (2) of the Criminal Procedure Code.
2. His prayer is that the court do review his sentence. He filed submissions in support of the petition in which he contends that he is aged thirty five (35) years; that this court has jurisdiction to review the sentence; that he has aged parents who need his support; that he has been rehabilitated. Lastly, that the court should take into account the period he spent in remand as provided under Section 333 (2) of the Criminal Procedure Code.
3. Mr. Omooria, Prosecution Counsel opposed the petition on grounds that the petitioner had filed Kisumu Criminal Appeal 141 of 2018 which he later withdrew to pave way for this petition based on the case of Francis Muruatetu Karioko and another =vs= Republic Pet 142 15 of 2015. Counsel urged that the petitioner has not produced anything in evidence to support the fact that he has children and aged parents to care for or that he has skills acquired while in prison; That the death sentence was already been commuted to life imprisonment and in any case the circumstance of the offence, whereby he murdered his wife on suspicion of infidelity were uncalled for. He urged the court to dismiss the petition.
4In Francis Kariokos’ case (supra), the Supreme Court did not declare the death sentence unconstitutional. However, the court declared the ‘mandatory death sentence’ unconstitutional because it took away a judge’s discretion to sentence an accused person. In the present case, the court takes into account the circumstances under which the deceased met her death. The petitioner murdered his wife in cold blood based on suspicion that she had a love affair. The petitioner inflicted six (6) cut wounds on the deceased’s head, meaning he wanted her dead. The circumstances of the offence were aggravated call for a severe and deterrent sentence.
5. In view of the Muruatetu case, that the court has discretion to sentence to any other sentence other than death, I hereby set aside the death sentence imposed by J. Mrima. I have considered the period of about four (4) years that accused was in remand. I hereby sentence him to serve forty (40) years imprisonment from the date of sentence on 17/2/2017.
DATED, SIGNED AND DELIVERED ON THE 15TH NOVEMBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama, for the State.The appellant virtual .Evelyne Nyauke – Court Assistant.