[2023] KEHC 25854 (KLR)

Ndaiya v Republic (Criminal Application E031 of 2022) [2023] KEHC 25854 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25854 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Application E031 of 2022

F Gikonyo, J

November 21, 2023

Between

Sakamo Ole Ndaiya

Petitioner

and

Republic

Respondent

(Revision from Original Conviction and Sentence in Narok CMCR No. 1187 OF 2006, Nakuru HCCRA No. 28 of 2010, and court of appeal Case No. 38 of 2012)

Judgment

Sentence re-hearing 1. Before the court is a notice of motion received in court on 30. 09. 2022. The applicant is seeking for a lenient definite sentence and period spent in custody be factored in the sentence awarded.

2. The application is expressed to be brought pursuant to articles 2, 3(a), 19(2), 20(1), 22(1), 23(1), 25(c), 26(1), 27(1)(4), 28, 50(2)(p)(q), 159(2) and 165(3) of the Constitution, section 216, 333(2) and 329 of the Criminal Procedure Code, and Section 296(2) of the Penal Code.

Brief background of this case 3. The applicant was charged, convicted, and sentenced to death for the offence of Robbery with violence contrary to section 296(2) of the Penal Code in Narok CMCR No. 1181 of 2006. He filed an appeal Narok HCCRA No. 38 of 2010 which was dismissed in its entirety. He further filed a second appeal before the Court of Appeal No. 28 of 2012 which was also dismissed.

Directions of the court. 4. The application was canvassed by way of written submissions. Both parties have filed.

Petitioner’s Submission 5. The applicant submitted that the death sentence is a cruel, inhuman, and degrading punishment that has violated his rights. The applicant relied on articles 26(1), 27(1)(2), 28, 48,50(2)(h)(p)(4) (a), 22(1)(2)(b) and 23(1) of the Constitution section 329 of the Criminal Procedure Code.

6. The applicant submitted that the death sentence is unconstitutional when given without any discretion. The applicant relied on articles 19(3)(a), 20(1)(2), 131(1), 2(5)(6), 25( c), and 50 of the Constitution and International Covenant On Civil And Political Rights (ICCPR), section 296(2), 216 and 329 of the Criminal Procedure Code, Edwin Otieno OdhiambovsRepublic [2009] eKLR, Godfrey Ngotho Mutiso Vs Republic criminal appeal no. 17 of 2008, Susan Kigula and 416 others Vs AG [2005] constitutional petition number 6 of 2003, Francis Kafantayeni and 5 othersvsAG [2007] MWNCI 9, RobertsvsLousiana, 431 US 633 [1977] A Lousiana, Mithu Vs State of Punjab Criminal appeal No. 745 of 1980, Exersley Thomas Vs St Vincent communication number 806/1998 UN DOC CCPR/70/806[2000].

7. The applicant submitted that section 296(1) falls under section 295 of the Penal Code and has a prescribed sentence of 14 years which is the least severe of the prescribed punishment for an offence of robbery. The applicant relied on the case of Joseph Mwaura Njuguna and 2 others Vs Republic [2013] eKLR and Article 50(1)(2)(p)(q) of the Constitution.

8. The applicant submitted that this court has jurisdiction to hear this matter. The applicant relied on the case of Owners Of Motor Vessel Lillian’s’ Vs Caltex Oil (Kenya) Ltd [1989] eKLR, Samuel Macharia & Another Vs Kenya Commercial Bank Ltd & 32 Others, Application No. 2 of 2011, article 23(1), 25(a) and (c ) of the Constitution.

9. The applicant submitted that the sentence imposed should consider the need to accord the applicant an opportunity and a chance to be rehabilitated. The prison has reformed the applicant’s life as well as transformed him. The applicant relied on the cases of Francis Opondo Vs Republic [2017] eKLR, Article 10(3)ICCPR, Douglas Muthaura Ntoribi V Republic [2014] eKLR

10. The applicant submitted that sentencing is a judicial process that must be exercised by judicial officers. The applicant relied on the cases of Thomas Mwambu Wenyi Vs Republic [2017] eKLR, Alister Anthony Pereira Vs State of Maharastra, Francis Opondo V Rep. [2017] eKLR, Article 50(2)(P) of the Constitution, Daniel Gichimu & Another V Rep [2018] eKLR, Paul Njoroge Ndungu Vs Republic [2021] eKLR.

11. The applicant submitted that due regard be put to the time spent in custody as per section 333(2) of the Criminal Procedure Code. The applicant relied on the cases of Ahamad Abolfathi Mohammed & Another V Republic [2018] eKLR, Robert Mutuasi Auda V Rep. [2018] eKLR, and Francis Opondo Vs Rep. [2017] eKLR

12. The applicant submitted that this court should consider that the applicant has been in custody for 18 years so as to achieve proportionality and parity. The applicant has relied on the following cases; Martin Bahati & Another Vs Rep. [2018] eKLR page 115 para 2, George Munyinyi Kihuyu V Republic [2018] eKLR page 98, Michael Kathewa Laichena & Another V A.G [2018] eKLR page 119, John Kathia M’itobi Vs Rep [2018] eKLR page 101, Joseph Mwangi Ngige & Another V Rep [2018] eKLR page 106, Lawrence Nkonge Mwiandi Misc. Cr. App. No. 72 Of 2018 Nakuru (UR) page 113, Samson Njuguna Njoroge V Republic H.C.CR. App. No. 150 of 2016 (UR) Delivered on 15th February 2018 pg 130 and John Kirema Kaibi V Republic [2018] eKLR page 133-134.

Respondent’s submission. 13. The respondent submitted that there is no rational reason why the reasoning of the Supreme Court in the Muruatetu case, which holds that the mandatory death sentence is unconstitutional for depriving the courts of discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply the provisions of robbery with violence which do exactly same thing. The respondent relied on section 296(2), 204 of the Penal Code, Francis Kariko Muruatetu & Another Vs Republic, James Kariuki Wagana Vs Republic [2018] eKLR, S Vs Mchuru & Another (AR 24/11) (2012) ZAKZPHC 6, S Vs Scott Crossely 2008 (1) SACR 223(SCA), Mithu Singh Vs State of Punjab 1983 AIR 473, Kisumu Court of Appeal Criminal Case No. 166 Of 2016 Cyrus Kavai Vs Republic.

14. The respondent submitted that the trial magistrate without any mitigating factors and without putting into consideration that the petitioner did not use excessive force nor did they unnecessarily injure the complainant during the robbery went ahead to pass a death sentence as was prescribed by the law. The violence unleashed on the victim was not sufficiently serious. The mitigating and aggravating factors were not put into consideration and the trial magistrate was tied to the prescribed law that imposed a mandatory death sentence upon the petitioner applicant. The applicant has shown through the filed court documents that he has undergone rehabilitation, has reformed, and if given a second chance could be a productive member of society. The respondent relied on the case of James Kariuki Wagana Vs Republic [2018] eKLR.

15. The respondent thus conceded to the petition on review of the death sentence.

Analysis And Determination 16. The application herein and the rival parties’ written submissions raise one issue;i.Imposition of mandatory death sentence without exercising any discretion.

Nature and scope of Re-sentencing 17. The application before the court is resentence request. Re-sentence is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review sentences only. It does not therefore consider conviction. Ordinarily, in re-sentencing, the court will check on the legality or propriety or appropriateness of the sentence. Thus, resentence will be concerned with inter alia, the penalty law, mitigating or aggravating factors, and the objects of punishments.

18. The court is guided by the observation of the Court of Appeal in the case of William Okungu Kittiny -v- R (2018) eKLR that:“The decision of the Supreme Court only discouraged persons from filing petitions to the Supreme Court but the decision does not prohibit court below it from ordering sentence re-hearing in a matter pending before the courts. By Article 163 (7) of the Constitution, the decision of the Supreme Court has immediate and binding effect on all the other courts. The decision of the Supreme Court opened the door for review of death sentences even in finalized cases.’’

19. Accordingly, this court has jurisdiction to adjudicate upon this sentence re-hearing or re-sentencing which is made on the basis of the unconstitutionality of the mandatory sentence.

Alleged violation 20. The applicant is challenging the mandatory nature of the death sentence in section 296(2) of the Penal Code for denying the court discretion to impose an appropriate sentence. He prays for the death sentence to be set aside and he be given a lenient sentence. He says that he is rehabilitated and has learned new skills which makes him fit for re-integration in society. In addition, he submitted that he is advanced in age and hopes to get a sentence that will give him an opportunity to support his family.

21. In reacting to these submissions, the prosecution counsel has conceded to the application.

Nature of application 22. It is worth mentioning that, this proceeding is premised upon inter alia articles 22(1), 23(3), and 165 (3) of the Constitution. Therefore, an application for redress of denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. And, I will deal with them as such.

23. The applicant claimed violation of article 50(2)(p) of theConstitution which provides: -50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing

24. It is now a principle that mandatory sentences deprive courts of discretion to impose appropriate sentences. As discretion in sentencing pertains to fair trial, persons who suffer this deprivation may claim violation of the right to appropriate or less severe sentence- a principle embodied in the Constitution including article 50(2)(p) of the Constitution.

25. Section 296(2) of the Penal Code provides: -"If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death."

26. The use of the term shall in Section 296(2) of the Penal Code discharge a mandatory command giving no room for any discretion by court in sentencing. Discretion in sentencing pertains to fair trial and justice. Therefore, the section, to the extent that it provides for a mandatory sentence of death, takes away the discretion of the court in sentencing, thus, inconsistent with the Constitution.

27. However, theConstitution provided the courts with new tools- read-in, red-out, or read-down techniques- in construing existing law with such modifications, exceptions, adaptations, and alterations necessary to bring it in conformity with the Constitution (Section 7 of the Transitional Provisions, Sixth Schedule of the Constitution). There is therefore, no absolute necessity or strict requirement in law to strike down a provision in existing law such as section 296(2) of the Penal Code for being inconsistent with the Constitution unless it is totally irreconcilable with the Constitution. These techniques were specially designed to avoid paralysis and confusion in the application of law which may ensue upon down-right striking out of provisions of existing law, but also giving the legislature time to remove the offending elements aligning it to the Constitution.

28. In this case, section 296(2) of the Penal Code is interpreted to prescribe death as the maximum sentence- this brings it into conformity with the Constitution.

29. Having stated that, the purport of re-sentencing is to provide an effective remedy to such injustice arising from a violation of a right or fundamental freedom as was aptly explained by Majanja J in Michael Kathewa Laichena & Another -v- Republic (2018) eKLR that:“…by re-sentencing the petitioner, the High Court is merely enforcing and granting relief for what is in effect a violation caused by the imposition of the mandatory death sentence.’’

30. In addition, the authority of the court in articles 165(3) and 23 of the Constitution to, inter alia, uphold and enforce the Bill of Rights also formally and actually gives the court power of consistently structuring, developing, and deploying progressive jurisprudence on enforcement of rights and fundamental freedoms across time and space in accordance with the command in article 20(3) of the Constitution, that: -In applying a provision of the Bill of Rights, a court shall—a.develop the law to the extent that it does not give effect to a right or fundamental freedom; andb.adopt the interpretation that most favours the enforcement of a right or fundamental freedom.

Sentence 31. Applying the test, does the sentence herein violate the rights of the applicant?

32. Every person should enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. The court is aware that the President commuted the death sentence to life imprisonment. But, the circumstances of the case should determine the appropriate sentence.

33. The Judiciary Sentencing Policy Guidelines lists the objectives of sentencing on page 15 paragraph 4. 1. Among others; the gravity of the offence, the threat of violence against the victim, and the nature and type of weapon used by the Applicant to inflict harm. What are the relevant circumstances of this case?

34. The court has considered the mitigating factors; his age, rehabilitation as well as family needs. Nevertheless, in the circumstances of this case, a deterrent sentence is most appropriate. Accordingly, the death sentence is set aside. In lieu thereof, the applicant is sentenced to 25 years imprisonment. As the sentence is lenient, it will commence from the date he was first sentenced.

35. It is so ordered.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 21ST DAY OF NOVEMBER, 2023. ........................HON. F. GIKONYO M.JUDGEIn the presence of:-1. Mr. Muraguri – Court assistant2. Applicant3. Ms. Kerubo for DPP