[2023] KEHC 23075 (KLR)

Nyakundi v Republic (Constitutional Petition E013 of 2022) [2023] KEHC 23075 (KLR) (3 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23075 (KLR)

Republic of Kenya

In the High Court at Eldoret

Constitutional Petition E013 of 2022

RN Nyakundi, J

October 3, 2023

N THE MATER OF ARTICLES 2 (1) (6), 3 (1), 10 (2) (b), 19, 22 (1), 25 (a), 27 (1), (2), (4), 28, 29 (a), (d) OF THE CONSTITUTION AND IN THE MATTER OF SECTION 216 & 326 OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA

Between

Justine Masolo Nyakundi

Petitioner

and

Republic

Respondent

Judgment

1. By an application dated 17/8/2022, the Petitioner/Applicant herein seeks the following orders: -a.Spent.b.That this Honourable Court be pleased to hold that the sentencing of the Applicant to indeterminate sentence of life imprisonment is contrary to Article 28 (right to dignity) and 29 (d) and (f) of the Constitution (protection from physical or psychological torture and protection from cruel, inhuman and degrading treatment or punishment) and it does not provide the offenders in question with an avenue for review of the said sentence.c.That according to Article 15 of the UN recommendations on life imprisonment, it questioned the objective and purpose behind giving prolonged sentences of imprisonment including life imprisonment. It concluded that such sentences are not compatible with the promotion of human dignity and the overall goal of Justice which should be restorative.d.That the Honourable Court be pleased to issue such other orders that the Court will deem fit, just and expedient in the circumstances foregoing.

2. The application is premised on the grounds therein and it is further supported by the Affidavit sworn by the Applicant on 17/8/2022.

3. The Petitioner herein was convicted and sentenced to life imprisonment for the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Criminal Case No. 2662 of 2012 at Kibera Law Courts. His first appeal to the High Court vide Nairobi Criminal Appeal No.229 of 2013 was dismisses for lack of merit. His second appeal to the Court of Appeal vide Nairobi Criminal Appeal No. 112 of 2017 was also dismisses.

4. The maintains that he initially in line with the jurisprudence brought by the decision by the decision by the Supreme Court in Petition No. 15 & 16 of 2015 ( Consolidated) Francis Karioko Muratetu and Another was estopped from apply for resentencing since he had not been sentenced to the mandatory death sentence, thereby causing an injustice to his right of a fair hearing. The Petitioner contends that he stands to suffer injustice since the life sentence imposed against him is inhuman and degrading and therefore, he seeks the Court’s intervention as regard to what is life sentence.

5. The Petition seeks for resentencing hearing. To buttress his arguments the Petitioner cited this Court’s decision in Rodgers Ouma V Republic [2021] eKLR where the Court was of the view that imposing lengthy sentences amounted to situations of over incarceration of the offender. The Petitioner urged the Court that in view of the aforementioned decision, it is only through judicial input by the Court upon comparability of other jurisprudence that come up with a defined minimum and maximum period within which a prisoner ought to serve before he or she can benefit from lesser alternative forms of sentencing like parole or remission.

6. The Petitioner maintains that the imposition of indeterminate sentences of life imprisonment which is devoid input is contrary to his right to the inherent tenets of Article 50 of the Constitution which guarantees the right to a fair trial.

7. The Petitioner contends that he has a right to have his cases reviewed so as to make them conform to not only the constitution but also to international laid down instruments which Kenya is party thereto.

8. In mitigation the Petitioner stated that he is a family man whose life and that of his family has been greatly affected by the imprisonment. The Petitioner also attached certificates to demonstrate that he has reformed and has underwent various rehabilitative programmes including leadership training.

9. In Francis Kariuki Muruatetu & Another v Republic Petition No. 15 and 16 of 2015, the Learned Judges of the Supreme Court held that Section 204 of the Penal code was unconstitutional in so far as it provided for the mandatory death sentence for the reasons that it limited the trial Court’s exercise of discretion while sentencing. The Court while remitting the matter to the high court for re- hearing on sentence held that: -“The facts in this case are similar to what has been decided in other jurisdictions. Remitting the matter back to the High Court for the appropriate sentence seems to be the practice adopted where the mandatory death penalty has been declared unconstitutional. We therefore hold that the appropriate remedy for the petitioners in this case is to remit this matter to the High Court for sentencing.....”

10. The Court proceeded to give the guidelines to be considered by the court while considering an application for re-sentencing and held inter alia: -“[71].As a consequence of this decision, paragraph 6. 4 - 6. 7 of the guidelines are no longer applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge: -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)remorsefulness of the offender;g)the possibility of reform and social re-adaptation of the offender;h)any other factor that the Court considers relevant.(72)We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process............................”

11. In sentencing an offender, the sentence meted out on an accused person must commensurate to the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirely before settling for any given sentence. (See Ambani Vs R). The Court of Appeal Thomas Mwambu Wenyi Vs Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71 where the court held the following on sentencing: -“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

12. The Courts now can exercise discretion when considering and passing sentence. The said discretion however should only be exercised in the deserving cases. (See Republic v Ruth Wanjiku Kamande [2018] eKLR).

13. In exercising discretion in sentencing, the Court must further have in mind the objectives of sentencing as laid down in the Sentencing Policy Guidelines, 2023 published by the Kenya Judiciary and which includes: -i.Retribution: To punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.iii.Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.iv.Restorative Justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims, communities’ and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.v.Community protection: To protect the community by incapacitating the offender.vi.Denunciation: To communicate the community’s condemnation of the criminal conduct.vii.Reconciliation: To mend the relationship between the offender, the victim and the community.viii.Reintegration: To facilitate the re-entry of the offender into the society.

14. In the directions issued by the Supreme Court on 6. 07. 2021 in Petition No. 15 & 16 (Consolidated)- Francis Karioko Muruatetu & Another –vs- Republic, the Court directed that 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.

15. The Supreme Court proceeded to hold that; -“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...”

16. As such, taking into consideration the principles set out in Muruatetu case as to the exercise of discretion in sentencing in murder cases and the guidelines in sentencing, and considering the objectives of sentencing as laid down in the Judiciary Sentencing Policy Guidelines, 2023 and further taking into consideration the circumstances under which the offence was committed, the seriousness of the said offence as well as the mitigation by the petitioners herein, it is my considered view that the Applicant still deserve a deterrent sentence.

17. In Nelson Mwiti Gikunda & 2 others v Republic [2018] eKLR where the Petitioners were a gang that assaulted the deceased before kidnapping her and killing her by beating her to death with sticks, rungus and whips, Majanja J. substituted the death sentence with 25 years’ imprisonment. In Republic v Muema Makali [2019] eKLR the Petitioner killed three people before burning their bodies and attempting to commit suicide Odunga J. substituted the death sentence with 40 years.

18. In Benson Ochieng & France Kibe –Vs- R (2018) eKLR, Joel Ngugi J. re-sentenced the petitioners to 20 years imprisonment upon considering that the offence was aggravated by the use of multiple guns by an organized gang to commit armed robbery.

19. Having said so, I recognized that there is an emerging jurisprudence that even life imprisonment ought to have a determinate period. I also take judicial notice of the severity of the offence vice vis the number of years already spent in custody by the Applicant and hereby set aside the life imprisonment and substitute it with 20 years’ imprisonment to run from 29/5/2012 when he was first arrested. This is in consonant with Section 333(2) of the Criminal Procedure code in cognisance of the period spent in pre –trial/conviction custody.

20. It is ordered so.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 3RD DAY OF OCTOBER 2023………………………………….R. NYAKUNDIJUDGE