[2022] KEHC 11998 (KLR)

Musau v Republic (Miscellaneous Criminal Application E311 of 2021) [2022] KEHC 11998 (KLR) (Crim) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11998 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E311 of 2021

LN Mutende, J

May 17, 2022

Between

Damaris Mueni Musau

Applicant

and

Republic

Respondent

Ruling

1. Damaris Mueni Musau, the Applicant, was charged, convicted and sentenced to suffer death for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Aggrieved, she appealed to the Court of Appeal which upheld the decision of the High Court, the trial court.

2. In the instant application she seeks re-sentencing. Her argument is that she made the application in the Court of Appeal and was referred back to the trial court. She urged that having been in prison for seven (7) years she has been rehabilitated and even engaged in beneficial activities like teaching students who have excelled.

3. In response thereto, the Respondent through Ms. Ntabo, learned State Counsel opposed the application. She urged that the applicant was sentenced to death in 2017 by a court of similar jurisdiction with the instant court, therefore, the court has pronounced itself.

4. Further, that the applicant appealed to the Court of Appeal which stated that notwithstanding the mitigation and circumstances of death of the deceased it did not find it necessary to interfere with the sentence.

5. I have duly considered rival arguments by both parties herein and the record of the court. It is not in dispute that the applicant on being dissatisfied by the decision of the trial court exercised her constitutional rights by preferring an appeal to the Court of Appeal which rendered itself in Cr App NO 100 of 2017, Damaris Mueni Musau-vRepublic(2020) eKLR thus:“Turning to sentence, the position we take is what was taken by the Court in the case of John Gitau Gachiri v Republic [2019] eKLR, where in, the Court stated as follows:“… As regards sentence, the trial Judge sentenced the Appellant to death. Counsel for the Appellant has urged the Court to re-consider this sentence in light of the Supreme Court decision in Francis Karioko Mwaruatetu & another v Republic & 5 others (supra). In that decision, the Supreme Court declared the mandatory aspect of the death sentence as provided under section 204 of the Penal Code, to be unconstitutional. What this means, is that a Judge who finds an accused person guilty of murder, has the discretion to impose any sentence, death penalty being the severest sentence that can be imposed.”In light of the sentiments expressed by the Court in the John Gitau Gachiri’s case(supra), whether the Court of Appeal will interfere with the trial court’s exercise of discretion to award a death sentence is not automatic. It depends on the circumstances of each case. It therefore has to be considered on a cases to case basis.In the above John Gitau Gachiri’s case(supra), where the attack on the deceased with a panga and fork jembe was vicious and uncalled for, the Court of Appeal sustained the death sentence handed down by the trial court. See also the case of Anne Waithera Macharia & 5 others v Republic[2019] eKLR, in which family members were involved in killing the deceased, mutilating his body and throwing it into a river, the Court of Appeal also sustained the death sentence handed down by the trial court. Having considered the circumstances under which the offence was committed as well as the appellant’s defence, we find no reason to interfere with the sentence meted against the Appellant”.

6. As correctly submitted by the Respondent, the matter in issue was dealt with to finality such that I cannot purport to review it. Consequently, since I am divested of the jurisdiction to determine this matter, the application fails and is dismissed.

7. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF MAY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMr. Kiragu for ODPPCourt Assistant – Mutai