[2022] KEHC 1980 (KLR)
The court held that the Supreme Court's decision in Muruatetu does not extend to robbery with violence cases, as clarified by the Supreme Court's directions. However, the court considered the applicant's status as a first offender, the length of time already served, and the lack of evidence of rehabilitation. The...
Source-derived case information.
- Citation
- [2022] KEHC 1980 (KLR)
- Parties
- Applicant: Musa Leshore Lemunke; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E002 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Resentencing Application Following Conviction and Unsuccessful Appeals
- Outcome
- application allowed in part; sentence reduced
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentences, Supreme Court Guidance, First Offender, Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musa Leshore Lemunke
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Resentencing Application Following Conviction and Unsuccessful Appeals
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Francis Muruatetu & another v. Republic.
- 2 Whether the mandatory life sentence for robbery with violence should be reduced considering the applicant's circumstances.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu does not extend to robbery with violence cases, as clarified by the Supreme Court's directions. However, the court considered the applicant's status as a first offender, the length of time already served, and the lack of evidence of rehabilitation. The court found that holding the applicant in custody for life without a definite period was not efficacious. Consequently, the court exercised its discretion to reduce the sentence from life imprisonment to 20 years, effective from the date of first custody, thereby balancing the interests of justice, rehabilitation, and deterrence.
Court Disposition
application allowed in part; sentence reduced
Orders
- The applicant's sentence of life imprisonment is reduced to 20 years from 27th July 2010.
- The application for resentencing is allowed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC. CRIMINAL APPLICATION NO. E002 OF 2020
MUSA LESHORE LEMUNKE..........APPLICANT
VERSUS
REPUBLIC.......................................RESPONDENT
JUDGEMENT
1. The applicant was sentence to suffer death after he was found guilty together with his co-accused on two counts of robbery with violence contrary to Section 296(2) of the Penal Code on 25th February 2011 in the Criminal Case No. 696 of 2010. The applicant together with others robbed Samuel Mwaura Mungai and Antony Wambugu Kimani on 29th January 2010 at Katakala area in Narok North District within the Rift Valley. He filed his appeal to the High Court in Criminal Appeal No. 66 and 68 of 2011 and the same was dismissed. The applicant together with his co-accused filed an appeal to the Court of Appeal which they later abandoned.
2. The application before this court is to reconsider resentencing following the Supreme court’s decision in the now famous case of Francis Muruatetu & another v. Republic, no 15 and 16 of 2015.
3. In his submission the applicant has pleaded that he was a first offender and he has been in custody for 9 years where he has greatly reformed and thus he was praying for a second chance.
4. He said that he was in custody from 27th July 2010 and all through the trial until the conviction day on 25th February 2011 as he was unable to raise bond though granted by the court. He submitted that he was thus remorseful having learned his hard lessons in prison and he would be useful in the society if granted a second chance.
5. The learned state counsel opposed the application. He submitted that the applicant’s reliance on the principles for re-consideration of sentence as espoused in the Muruatetu case would not suffice in this case as the offence committed was serious and the court should not alter the sentence commensurate with the two counts. He submitted the applicant had not indicated what he had done while serving for 9 years in prison or what skills of life he had acquired. He submitted that he did not object to the time spent by the applicant in prison and the applicant’s request for the probation officer report to be availed.
6. I have perused the record and clearly it is apparent that applicant together with his co-accused committed the offence of robbery with violence which in itself is a capital offence hence the prescribed death sentence. Further, the import of punishment as provided in our statute books is to try as much as possible ameliorate the suffering of the victims. Nonetheless it is meant to somehow compensate for the loss by having the offender punished. In my view the applicant cannot benefit from the Muruatetu decision as the Supreme Court clearly directed on 6th July 2021 that the same only applied to murder cases.
7. The application can be considered however on the grounds that the applicant was a first offender and holding him in custody for life and without a definite period may not be efficacious. It is noted that he has been in custody from 27th July 2010 to date. The court agrees with the learned state counsel that there is nothing exhibited by the applicant that he has trained or learned while in prison.
8. He however depending on his level of education and interest can still train while in custody. The court nonetheless shall grant him another opportunity.
9. The application is hereby allowed and the applicant sentence of life imprisonment is hereby reduced to 20 years from 27th July 2010. Hopefully before being set free he shall have trained at least for some meaningful course so that he will not relapsed into another round of crime.
10. Orders accordingly.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 3RD DAY OF MARCH 2022.
H K CHEMITEI.
JUDGE