[2022] KEHC 12515 (KLR)

Njagu v Republic (Criminal Petition E026 of 2020) [2022] KEHC 12515 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12515 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition E026 of 2020

JN Kamau, J

May 16, 2022

Between

Lenard Chege Njagu

Petitioner

and

Republic

Respondent

Judgment

Introduction 1. The petitioner herein was tried and convicted for the offence of robbery with violence contrary to section 296 (2) of the Penal Code. He was sentenced to death.

2. Being dissatisfied with the said decision, he lodged an appeal in the High Court being, HCCRA No 32 of 2005 which was dismissed in its entirety. It was not clear to this court if he appealed to the Court of Appeal because there was no such record in this file at the time of writing this judgment. However, there was a letter dated July 19, 2021 addressed to the officer in charge of the archives Kisumu Law Courts alluding to Kisumu Court of Appeal CRA No 32 of 2009 relating to him.

3. On December 18, 2020, he filed this petition for review of the sentence. In his affidavit in support of his application, he stated that he was seeking for review of sentence by virtue of the case of Francis Karioko Muruatetu & Another vs Republic[2017] eKLR. He also relied on the case of Guyo Jarson Guyo No 6 of 2018 Marsabit High Court (eKLR citation not given).

4. In his written submissions, he contended that section 296(2) of the Penal Code was a mandatory minimum penal provision which did not allow for the discretion of the Trial Magistrate to decide what measure of sentence was called for by the criminal culpability of the offender for the offence. He added that that law was therefore in contravention of the principle of individualised sentencing where the gravity of the offence and the level of criminal culpability that was attached to the circumstances under which the offender committed the offence were determinants of the sentence to be imposed.

5. He was emphatic that the indefinite nature of life imprisonment left the convict with no hope of ever leaving prison, which then implied that it was not meant to achieve its goal of reforming and rehabilitating the offender.

6. He placed reliance on the case of Republic vs Thomas Patrick Gilbert Cholmondely HCCR Case No 55 of 2006 [2009] (sic) (eKLR citation not given) where while relying on the book entitled Sentencing and Criminal Justiceby Andrew Ashwodje, the court held that maximum discretion should be left to court and any encroachment on that was likely to lead to injustice.

7. He added that the principle to be observed in sentencing was set out in the case S vs Scott Crossley 2008 (1) SACR 223 SCA where the court held that in the interest of justice, crime should be punished but that punishment that was excessive served neither the interest of justice nor those of the society.

8. He argued that offences that were categorised as capital in nature must not always attract capital punishment because even in the said category, crimes were committed in diverse circumstances and therefore the individual levels of culpability that could be inferred upon the convicts were also diverse and thus the penalties to be imposed had also to be of diverse forms and measure in tandem.

9. He added that death sentence or life imprisonment could be warranted in a case where the offence was committed in a grievous and morally deprived manner, which was not so in the circumstances of his case. He was categorical that it was a fallacy to equate an incident of robbery where a victim died in the process of commission of the crime, to another where the victim was only subjected to fear and released unhurt by the attackers.

10. He placed reliance on the cases of Katana Mangi vs Republic Petition No 18 of 2015 (eKLR citation not given) and Aden Abdi Simba vs Republic Constitutional Petition No 24 of 2015 (eKLR citation not given) where the courts set aside the death sentences and replaced the same with lower imprisonment sentences.

11. He urged this court to find that the period he had spent in custody was sufficient punishment considering the circumstances under which the offence was committed in his case.

12. The state opposed his petition for the reason that there was overwhelming evidence against him in the matter and that was the reason for his conviction being upheld by the Court of Appeal (sic).

13. It submitted further that the decision on constitutional validity of mandatory death sentence which was made in Francis Kariokor Muruatetu & Another vs Republic (supra) only related to murder cases. It was emphatic that the said decision did not invalidate the mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.

14. It pointed out that the matter at hand was one of robbery with violence which did not fall under the ambit of the case of Francis Karioko Muruatetu & Another vs Republic (Supra).

15. It was its contention that the petitioner had not supplied this court with any document to show that he was remorseful in any way for his actions. It added that he did not attempt to give this court sufficient reasons as to his ability to benefit from a reduction of the sentence.

Legal Analysis 16. On July 6, 2021, the Supreme Court of Kenya gave guidelines in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) to the effect that the said decision only applied in respect to sentences of murder under sections 203 and 204 of the Penal Code and not applicable to capital offences such as treason under section 40 (3), robbery with violence under Section 296 (2) and attempted robbery with violence under Section 297 (2) of the Penal Code.

17. Notably, the holding in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) was inapplicable herein as the petitioner had been charged and convicted of the offence of robbery with violence and rape and not murder as was emphasised by the Supreme Court in its aforesaid guidelines. Consequently, his prayer that the court reviews his sentence thus fell by the wayside as the said case did not invalidate the minimum or mandatory sentences in the Penal Code, Sexual Offences or any other statute as was correctly submitted by the state.

Disposition 18. For the foregoing reasons, the upshot of this court’s decision was that the petitioner’s petition for review of sentence that was lodged on December 18, 2020 was not merited and the same be and is hereby dismissed.

19. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 16TH DAY OF MAY 2022. J. KAMAUJUDGE