[2023] KEHC 26916 (KLR)

Njue v Republic (Constitutional Petition E010 of 2023) [2023] KEHC 26916 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26916 (KLR)

Republic of Kenya

In the High Court at Embu

Constitutional Petition E010 of 2023

LM Njuguna, J

December 13, 2023

IN THE MATTER OF CONTRAVENTION OF FUNDAMANTAL RIGHTS AND FREEDOMS UNDER ARTICLES 25(a)(c), 27(1), 28, 29(a)(d)(f), 48, 50(1)(2(l)&(p)) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTIONS 216 AND 329 OF THE CRIMINAL PROCEDURE CODE AND SECTION 296(2) OF THE PENAL CODE

Between

Justina Ndwiga Njue

Petitioner

and

Republic

Respondent

Judgment

1. The petitioner has filed petition dated 18th August 2023 seeking the intervention of this court on the sentence imposed. The orders sought are as follows:a.A declaration that the sentence imposed by the trial court and upheld by the High Court and Court of Appeal is inconsistent with Article 50(2)(b)&(p) of the Constitution and Section 329 of the Criminal Procedure Code;b.A declaration that the section 296(2) of the Penal Code is inconsistent with Articles 26(1)(2), 28, 48, 50(1)(2)(p) of the Constitution; andc.A declaration that the Constitutional rights of the petitioner have been violated.

2. The petitioner was charged with three counts of robbery with violence in Embu Senior Principal Magistrates Criminal Case number 1957 of 2004 and was convicted and sentenced to death, which sentence was commuted to life imprisonment by a Presidential directive. The petitioner appealed to the High Court in Embu Criminal Appeal No. 180 of 2005 where the conviction for the three counts and sentence for the 1st count were upheld while the sentences for the other two counts were suspended.

3. The respondent filed grounds of opposition stating that this court lacks the jurisdiction to define a life imprisonment sentence as that is a preserve of the Legislature.

4. The parties herein filed their written submissions.

5. The petitioner submitted that he has already served 19 years imprisonment and seeks leniency of the court and review of the sentence.

6. The respondent submitted that Section 296(2) of the Penal Code prescribes the mandatory sentence for robbery with violence as was applied in the case of Willaim Okungu Kittiny v. Republic (2018) eKLR in which the Court of Appeal was guided by the Supreme Court in the Muruatetu Case. That the Supreme Court rendered Sections 296(2) and 297(2) of the Penal Code inconsistent with the Constitution only to the extent of its mandatory nature.

7. On the petitioner’s argument that the indeterminate nature of the life imprisonment sentence is unconstitutional, reliance was placed on the cases of Jackson Maina Wangui & Another v. Republic (2014) eKLR and Dennis Kiprotich Byegon v. Republic (2022) eKLR and submitted that life imprisonment can only be defined by the legislature. It stated that the Supreme Court in the case of Francis Karioko Muruatetu & Another v. Republic (2017) eKLR cautioned parties aggrieved from the decision to await the relevant legislative guidance.

8. The issues for determination herein are:a.whether this court has jurisdiction to grant the orders sought in the petition; andb.whether the petition has merit.

9. On the question of whether this court has jurisdiction to determine the petition, it is true that the end goal of the petition is to seek re-sentencing. I must clarify that this is a constitutional petition and therefore it is rightly before this court which bears original jurisdiction for constitutional cases. Further, this court has jurisdiction to direct on matters of resentencing as donated to it through recent jurisprudence, particularly in the Court of Appeal decision in the case of Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023). In this case, it was held thus:“…we are of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution”.

10. On the issue of whether the petition has merit, the petitioner seeks review of the life imprisonment sentence. In the case of Francis Karioko Muruatetu & Another v. Republic (2017) eKLR (supra), it was held thus:“Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Article 25 of the Constitution; an absolute right…. We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute”

11. In the Supreme Court’s decision of Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the court stated;“It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution”

12. The mandatory death sentence imposed by the trial court was commuted by a Presidential directive to life imprisonment, which is what the petitioner is currently serving. I agree with the Superior courts in the above-cited decisions to the extent that mandatory or minimum sentences curtail the trial court’s discretion on sentencing. This argument must, however, not be wielded casually as cautioned by the Supreme Court. It is not true that the sentence imposed is unconstitutional but rather, that the sentence can be subjected to the review on the strength of stare decisis.

13. As to whether the sentence imposed contravenes the petitioner’s inalienable rights under Articles 26(1)(2), 28, 48, 50(1)(2)(p) of the Constitution, the following is my view:a.Articles 26(1)(2) provide to every person’s right to life and this was already addressed when the President commuted the death sentence to life imprisonment, therefore a declaration cannot be made to this end;b.Article 28 provides for human dignity and the superior court has already established this in the case of Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) where the indeterminate nature of life imprisonment was rendered discriminatory;c.Article 48 provides that the state shall ensure access to justice to all persons. In my view, the sentence meted out to the petitioner followed the course of justice from the trial court’s finding to the Presidential commutation of the same; andd.Article 50(1)(2)(p) provides for the right to fair hearing and 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. In my view, the Presidential commutation of the death sentence and the superior court’s decisions have already offered sufficient fair trial to the petitioner.

14. In light of the decision in the case of Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) cited hereinabove, the indeterminate nature of life imprisonment is discriminatory and the number of years should be defined.

15. I find that the petition has merit. While keeping in mind the number of years that the petitioner has already served, the sentence is hereby reduced to 11 years imprisonment to run from the date of this decision.

16. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF DECEMBER, 2023. L. NJUGUNAJUDGE