[2022] KEHC 13972 (KLR)

Muthoni v Republic (Petition E012 of 2021) [2022] KEHC 13972 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13972 (KLR)

Republic of Kenya

In the High Court at Nyeri

Petition E012 of 2021

FN Muchemi, J

October 13, 2022

Between

Geoffrey Chomba Muthoni

Petitioner

and

Republic

Respondent

(High Court in Nyeri in Criminal Case No 42 of 2008 Criminal Case 42 of 2008 )

Judgment

Brief Facts 1. The undated application for determination is undated and was filed on December 14, 2021. It is brought under article 169 (1) (a) as read with article 25(a) (c) & (d) of the Constitution seeking a reduction of sentence in view of the decision of the Supreme Court in Petition No 15 & 16 of 2015 (Consolidated) Francis Karioko Muruatetu vs Republic.

2. The background facts are that the petitioner was charged before High Court in Nyeri in Criminal Case No 42 of 2008 with the offence of murder contrary to section 203 as read with 204 of the Penal Code and was sentenced to the mandatory death sentence. He subsequently filed an appeal in the Court of Appeal No 35 of 2017 but withdrew the appeal to pursue this application for re-sentencing in pursuance with the Supreme Court decision of Francis Karioko MuruatetuPetition No 15 of 2015. The petitioner has now sought review of sentence and urges this court to grant him a lesser sentence other than that of death imposed on him by the trial court on October 13, 2017.

3. The parties filed written submissions to dispose of this application.

Petitioner’s Submissions 4. The petitioner submitted that the death sentence is cruel, inhuman and degrading punishment which violates his fundamental rights and freedoms. He urges the court to be lenient with him and review his sentence downwards. He further prays that the court consider the time he spent he spent in custody. The petitioner states that he was arrested in July 2008, charged, convicted and sentenced to death. He further seeks to be granted a non-custodial sentence and submits that he is reformed and is a changed man.

Respondent’s Submissions 5. The respondent opposed the petition for re-sentencing and submitted that the petitioner attacked the deceased and PW1, a minor, who was aged 10 years at the time of the trial without provocation. The victims were defenceless as the petitioner was already in the house when PW1 came home from school. When PW1 opened the door, the petitioner held his hand and started stabbing him on the leg with a metal rod. The petitioner further stabbed him on his neck, stomach, chest and eyes and then threw him under the bed thinking he was dead. PW1 testified that when he entered the house, he saw their house girl the deceased, under the bed. The petitioner threw the bodies of his victims under the bed.

6. The petitioner attacked the deceased at her employer’s house using a metal rod thus inflicting severe injuries on the head, neck, left collarbone and ribs which led to her death. The cause of death was established to be penetrating stab wounds on the chest and abdomen. The deceased also had arrows which were later recovered by police at the scene.

7. The respondent submits that the petitioner was convicted and sentenced on October 31, 2017 and thus his contention that he is remorseful and that he is a changed man is not sufficient. The respondent argues that the time served is barely enough for the petitioner to be considered as a reformed man to be considered for a non-custodial sentence. Furthermore, the time served by the petitioner has not served the purpose for which imposition of sentences is meant. The respondent states that the purpose of any sentence is retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation.

8. The respondent further submitted that an innocent life was lost and the family of the deceased has not had adequate time to heal in the short time the petitioner has been serving his sentence. Further, the respondents state that it is highly unlikely that the secondary victims have recovered from the incident.

9. The respondent further argues that the petitioner was charged with a serious offence and the circumstances of the offence were gruesome. As such, the respondent states that the petitioner is not a suitable candidate for resentencing. Further, the petitioner has not demonstrated why the sentence of death should be reviewed. The respondent contends that the sentence given by the trial court was adequate and calls upon the court not to interfere with the sentence. As such, the respondent prays that the application be dismissed.

10. On perusal of the petition and the submissions, the main issue for determination herein is whether the petitioner has established that he is deserving of a lesser sentence that of death.

11. The mandatory nature of the death sentence was declared unconstitutional by the Supreme Court in Francis Karioko Muruatetu & another vs Republic [2017] eKLR. Subsequently, the Supreme Court on July 6, 2012 in Francis Karioko Muruatetu & another vs Republic, Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR specifically issued the following guidelines to be followed by courts in hearing for resentence."i.The decision of Muruatetu and the guidelines herein apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code.ii.The Judiciary Sentencing Policy Guidelines were to be revised in tandem with the new jurisprudence enunciated in Muruatetu.iii.All offenders who have been subject to the mandatory death penalty and desired to be heard on sentence will be entitled to re-sentencing hearing.iv.Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.v.In determining an application for re-sentencing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure code, as well as those of the victims before deciding on the suitable sentence.vi.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court which has jurisdiction to do so and not the subordinate court.vii.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following will guide the court:a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social re-adaptation of the offender;j.Any other factor that the court considers relevant.viii.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.ix.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu."

12. The record shows that the petitioner attacked the deceased and a minor aged ten (10) years inflicting fatal injuries but by the grace of God the minor miraculously survived. A third victim, a neighbour was also attacked by the petitioner. The minor sustained severe stab injuries on the stomach, chest and eyes. The weapon used by the petitioner was a metal rod and also had arrows. The petitioner stabled the deceased on a 2nd around attack as she lay helpless under a bed where he had dumped her.

13. The petitioner was convicted and sentenced on October 31, 2017 thus he has spent about 4 years and 10 months in custody since his conviction and sentence. The only mitigating factor on record is that the petitioner has reformed and is remorseful. In his submissions, the petitioner adds that he has transformed by undertaking some courses to better himself while in custody.

14. From the evidence adduced during the trial, the motive of the murder was that the petitioner was annoyed with one of the witnesses the owner of the home where the victims were attacked for buying land from his mother. It is noted that the land did not belong to the petitioner but to his mother. The deceased was a house girl of the witness whom he found at the home. He had declared the intention to kill all the people in that household. Fortunately PW 4 and his wife were not at home at the material time.

15. The severity and intensity of the injuries inflicted on the victim as well as the horror accompanying the attack requires to be considered in review of sentence. In the case of Republic vs Ruth Wanjiku Kamande, Lessit, J as she then was, declined to give any other sentence but death due to the manner in which the fatal injuries were executed as well as their grave nature. The site of the injuries was considered too and the court observed that the accused had clear and deliberate intention to cause the deceased pain, suffering and death. The accused had stabbed the deceased 25 times despite pleas to stop. The court after taking into account the circumstances of the case and all relevant factors in sentencing held:-“It is important to say that in my view that discretion to pass a sentence other than death in capital offences should only be exercised in deserving cases. I do not find this a deserving case.”

16. In this case, I am of the considered view that this is not a deserving case for a sentence other than death due to the aggravating circumstances involved.

17. Having considered all the foregoing factors, I find no merit in this petition for review. It is my view that the petitioner deserves nothing less than the prescribed death sentence.

18. The petition stands dismissed accordingly.

19. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 13TH DAY of OCTOBER, 2022. F. MUCHEMIJUDGEJudgement delivered through video link this 13th day of October, 2022.