[2022] KEHC 12514 (KLR)

Odongo v Republic (Criminal Petition 68 of 2020) [2022] KEHC 12514 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12514 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition 68 of 2020

JN Kamau, J

May 16, 2022

Between

Maurice Owuor Odongo

Petitioner

and

Republic

Respondent

Judgment

Introduction 1. The petitioner herein was tried and convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He was sentenced to death which was later commuted to life imprisonment by the President in the year 2016.

2. On August 20, 2020, he filed this petition for review of the sentence. In his affidavit that he swore in support of his application, he stated that based on the Supreme Court ruling that was made on December 14, 2017, the mandatory death sentence meted on him was unconstitutional, in humane and degrading.

3. In his written submissions that were filed on February 9, 2022, he contended that the constitutionality of the mandatory nature was decried by the Supreme Court of Kenya in the case of Muruatetu & another v Republic (eKLR citation not given) where the court held that such law can only be regarded as harsh, unjust, unfair and/or deprives the courts their legitimate strength and jurisdiction to exercise and thus individualising an appropriate sentence to the relevant aspect of the records, character, social interest and consciousness of the society for award of the appropriate sentence to the accused person.

4. He argued that at the time the trial court meted the death sentence on him, its hands were tied by the law of mandatory death sentence. He pleaded with the court to grant an order for resentencing.

5. He averred that he was arrested on July 26, 2005 at the age of fifty-two (52) years and having so far spent sixteen (16) years in custody, he was currently sixty-eight (68) years old. He contended that his health had deteriorated due to his long incarceration. He added that he was under threat of the deadly Covid-19 due to chronic ailment of HIV/AIDS and hypertension. He pointed out that his family was overwhelmed with responsibilities.

6. He further asserted that he had maintained pleasant and extreme disciplinary measures within the prison for the time he had been incarcerated which earned him remarkable and plausible recommendation by the prison authority as he was rated the best at all times. He contended that he had been nurtured mentally, spiritually and physically by engaging in rehabilitation courses and had been awarded certificates for completion in Discovery Bible School, Health Education and Lamp and Light courses. He believed that having gained the skills would enable him integrate well back to society.

7. He pointed out that he was remorseful of the events that led to the criminal act and added that he was a first offender and sought for the leniency of court as his family was ready to resettle his rehabilitation (sic) in the essence of reconciliation linked with the parties concerned.

8. He urged the court to also consider section 333(2) of theCriminal Procedure Code while resentencing.

9. On its part, the State opposed his petition for review of sentence. It argued that the Supreme Court in Francis Karioko Muruatetu & another v Republic Petition No 15 of 2015 (eKLR citation not given) set out guidelines with regard to mitigating factors with respect to sentencing which included, age of the offender, being a first offender, whether the offender pleaded guilty, character and record of the offender, commission of the offence in response to gender-based violence, remorsefulness of the offender, the possibility of reform and social re-adaptation of the offender and any other factor that the court considered relevant.

10. It argued that as appreciated by the Supreme Court in the aforesaid case, many courts have highlighted the principles of sentencing, and one such case is Dahir Hussein v Republic [2015] eKLR where the court held that the objectives included deterrence, rehabilitation, accountability for one’s actions, society protection, retribution and denouncing the conduct by the offender on the harm done to the victim.

11. It was categorical that the 2016 Judiciary of Kenya Sentencing Policy Guidelines also listed the objectives of sentencing as retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation.

12. It was its contention that various factors had to be taken into consideration before a sentence was reviewed. It was emphatic that the petitioner had not demonstrated any remorse and/or whether he had reformed so as to benefit from a sentence reduction. It added that having been convicted by this court, it would amount to the court revising its orders if this court reviewed his sentence. It urged the court to dismiss his petition and uphold his conviction and sentence.

Legal Analysis 13. On July 6, 2021, the Supreme Court gave guidelines in the case of Francis Karioko Muruatetu & another v Republic [2017] eKLR to the effect that the said decision applied to sentences of murder under sections 203 and 204 of the Penal Code.

14. Bearing in mind the case of Francis Karioko Muruatetu & another v Republic (supra) and The Sentencing Policy Guidelines, 2016 of the Judiciary, this court was satisfied that this was a suitable case for it to exercise its discretion to review the life sentence. Notably, in the case of William Obondo Ochola v Republic [2021] eKLR, this very court found and held that the commutation of the death sentence to life imprisonment by the President in 2016 was an executive order and was not as a result of a judicial function.

15. It was the considered view of this court that the petitioner herein was thus entitled to the benefit of re-sentencing by this court as failure to review his sentence would be discriminatory and contrary to the provisions of article 27(4) of theConstitution of Kenya, 2010 that prohibits any form of discrimination.

16. This court took cognisance of the fact that one of the objectives of punishment is retribution. Indeed, justice must not only be done for the deceased’s family, but must also be seen to be done. Be that as it may, while there was need to send a strong message to the society that violence against other persons was strongly condemned, convicts who had reformed and were remorseful ought to be given a second chance and have a new lease of life where appropriate.

17. The petitioner herein had already spent about six (6) years behind bars from the date of his sentencing. He obviously had had sufficient time to reflect on his actions. The officer in charge Kisumu Maximum Prison, filed a letter in court vouching for the review of the Petitioner’s sentence. The Petitioner furnished the court with certificates showing that he had undergone rehabilitation programmes to enable him reintegrate well with the society when he will be released from prison.

18. Notably, the petitioner attacked the deceased with a panga. The deceased suffered greatly before he died. The murder could only have been said to have been gruesome. It was so pre-meditated and malicious.

19. Accordingly, taking all the factors into consideration, this court came to the firm view that a sentence of thirty (30) years imprisonment for the offence the Petitioner committed was fair in the circumstances of the case herein.

20. It was evident that his application for consideration of section 333 (2) of the Criminal Procedure Code cap 75 (laws of Kenya) was previously inapplicable as his sentence was life imprisonment. Being an indeterminate sentence, the number of years he spent in custody were irrelevant. However, bearing in mind that his sentence could now be determined, the provisions of section 333(2) of the Criminal Procedure Code became applicable herein.

21. Indeed, in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, the Court of Appeal held that the court was obliged to take into account the period that a convicted person had spent in custody before they were sentenced as provided in section 333(2) of theCriminal Procedure Code.

22. The petitioner was arraigned in court on September 15, 2005. He was convicted on November 11, 2015. He had therefore stayed in custody for about ten (10) years before he was convicted, a period which ought to be taken into account at the time of computing his sentence.

Disposition 23. For the foregoing reasons, the upshot of this court’s decision was that the petitioners’ petition for review of the sentence that was filed on August 20, 2020 was merited and the same be and is hereby allowed. Accordingly, the court hereby upholds the conviction of the petitioner for the offence of murder but reviews the mandatory death sentence that was imposed upon him and later commuted to life imprisonment and replaces the same with thirty (30) years imprisonment.

24. It is hereby ordered and directed that the period the petitioner spent in custody, if at all, shall be taken into account when computing his sentence in accordance with section 333(2) of the Criminal Procedure Code cap 75 (laws of Kenya).

25. It is so ordered.

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