[2020] KEHC 5640 (KLR)
The court found that the trial court had already considered the applicant's mitigation circumstances, including his status as a first offender, time spent in custody, and role as a sole breadwinner, before imposing the death penalty. The Supreme Court decision in Muruatetu did not abolish the death penalty but only...
Source-derived case information.
- Citation
- [2020] KEHC 5640 (KLR)
- Parties
- Applicant: Ngalu Kavita; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 67 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Mitigation, Resentencing Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngalu Kavita
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the applicant is entitled to re-sentencing following the Supreme Court decision in Muruatetu.
- 2 Whether the mandatory death penalty for murder is unconstitutional and if the applicant's sentence should be reviewed.
Ratio Decidendi
The court found that the trial court had already considered the applicant's mitigation circumstances, including his status as a first offender, time spent in custody, and role as a sole breadwinner, before imposing the death penalty. The Supreme Court decision in Muruatetu did not abolish the death penalty but only the mandatory aspect, requiring courts to consider mitigation. Since the trial court complied with this requirement, and the applicant did not appeal the sentence, the High Court lacks jurisdiction to re-sentence. Any challenge to the appropriateness of the death penalty in this case must be made to the Court of Appeal. Therefore, the application for re-sentencing lacks merit...
Court Disposition
application dismissed
Orders
- The application for re-sentencing is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL MISC. APPLICATION NO. 67 OF 2019
NGALU KAVITA.....................APPLICANT
VERSUS
REPUBLIC...........................RESPONDENT
RULING
1. The applicant was convicted and sentenced to death in a charge of murder on 20/12/2018. He says that he never lodged an appeal to the court of appeal.
2. He has now moved this court for re-sentencing. The applicant relied on case of Supreme Court Francis Karioko Muruatetu & Another =Vs= Republic [2017] eKLR.
3. The essence of the Muruatetu case was that death sentence is not illegal but only mandatory aspect which may make trial court not to consider mitigation as tendered. The Supreme Court in the Muruatetu case (Supra) held that although the mandatory death penalty having been declared unconstitutional, the death penalty still exists as the maximum sentence for murder under Section 203 and 204 of the Penal Code.
4. In the instant case the trial court was alive to the holding in the aforesaid Muruateru case which had been decided on 17/12/2017. This is apparent as the trial court considered mitigations thus held, “I have considered that accused was a first offender, was in custody for 6 years and a sole breadwinner. However, the deceased (his wife) was defenseless. The attach was very vicious with her having been stabbed several times.” Thus, the court found it would award a maximum sentence which is death.
5. The Muruatetu case did not outlaw death sentence but retained it as maximum sentence. The circumstances the award of death penalty by my brother Dulu J can only be challenged in the Court of Appeal.
6. Thus, application lacks merit and is dismissed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 27TH DAY OF MAY, 2020.
C. KARIUKI
JUDGE