[2021] KEHC 5349 (KLR)
The court found that the petitioner was sentenced to death under a mandatory regime without an opportunity to mitigate, contrary to the Supreme Court's decision in Muruatetu. The court considered the period already served (about eighteen years), evidence of rehabilitation, and the support of the petitioner's family....
Source-derived case information.
- Citation
- [2021] KEHC 5349 (KLR)
- Parties
- Applicant: Peter Irungu Makurathi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; death sentence set aside; petitioner resentenced to 25 years imprisonment from date of arrest
- Judges
- FN Muchemi
- Legal Topics
- Resentencing, Mandatory Death Sentence, Mitigation, Murder Conviction, Supreme Court Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Irungu Makurathi
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Muruatetu declaring the mandatory death sentence unconstitutional.
- 2 Whether the petitioner should be given an opportunity to mitigate before resentencing.
- 3 What is the appropriate sentence considering the circumstances and period already served.
Ratio Decidendi
The court found that the petitioner was sentenced to death under a mandatory regime without an opportunity to mitigate, contrary to the Supreme Court's decision in Muruatetu. The court considered the period already served (about eighteen years), evidence of rehabilitation, and the support of the petitioner's family. Despite the gravity of the offence and the ongoing trauma to the victim's mother, the court held that the petitioner deserved a review of sentence. The death sentence was set aside and substituted with a term of twenty-five years imprisonment to run from the date of arrest.
Court Disposition
petition allowed; death sentence set aside; petitioner resentenced to 25 years imprisonment from date of arrest
Orders
- The death sentence is set aside.
- The petitioner is resentenced to serve twenty-five (25) years imprisonment to run from 26/05/2004.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
PETITION NO. 5 OF 2018
PETER IRUNGU MAKURATHI........PETITIONER
VERSUS
REPUBLIC ...................................RESPONDENT
JUDGEMENT
1. This is a petition seeking for orders for resentencing relying on the Supreme Court Petition of Francis Karioko Muruatetu & Another Versus Republic No. 5 of 2015 in which the apex court declared unconstitutional the mandatory nature of death sentence under Section 204 of the Penal Code.
2. The background facts are that the petitioner was convicted of the offence of murder by Nyeri High Court in Criminal case No. 114 of 2003 contrary to Section 203 as read with Section 204 of the Penal Code and was sentenced to death. Being dissatisfied with the judgement, the petitioner lodged his appeal to the Court of Appeal sitting at Nyeri which was dismissed.
3. The Supreme Court opened a window for murder convicts to petition for re-sentencing before the High court in pursuance with the judgment in the said petition. The apex court also found that the courts in criminal cases ought to exercise their discretion in sentencing after hearing the accused in mitigation as well as considering all the factors set out in that decision and in the Judiciary Sentencing Policy.
4. The record of the High Court shows that the petitioner was convicted by the court upon the summing up by the assessors who recommended that the evidence proved the offence of murder. The petitioner did not get an opportunity to mitigate on sentence. His advocate said he would not offer any mitigation “since the hands of the court are tied” It is therefore necessary that the mitigation of the petitioner herein be taken into consideration before re-sentencing.
5. The petitioner states that he was convicted on 26/05/2004 and has been in prison for over twenty (20) years including the period he spent in custody pending trial. He states that while in prison, he has reformed and turned to Christ accepting him as his personal saviour. He has studied several courses during the period of incarceration. These include tailoring, dress- making, attained Diploma in theology AFCM and TEE and undergone a basic course in modern farming.
6. The trainings are confirmed by the Officer in-charge of Nyeri Maximum Prison in his letter dated 30/07/2019. The officer adds that the petitioner has “embraced correctional core values of reformation and rehabilitation, hence considered a person who can integrate well with the outside world.”
7. The re-sentencing report indicates that the petitioner is willing to seek forgiveness from the mother of the victim who is his sister. His other sister Grace and his brother Washington were of the view that petitioner has suffered enough in custody and that since he has apologised to the victim’s mother he can be released. They are ready to welcome him home and help him to integrate in society.
8. This court cannot lose sight on the fact that the petitioner slashed a young boy who was his nephew to death. This was very traumatising to the victim’s mother who is still bitter despite the apologies sent to her by the petitioner. A life of a young person was lost for no good cause in this petition.
9. I have considered all the above factors and the period of about eighteen years spent in incarceration and I am of the considered view that the petitioner deserves orders sought for review of sentence.
10. The death sentence is hereby set aside and the petitioner is hereby resentenced to serve to twenty five(25) years imprisonment to run from 26/05/2004 when he was arrested.
11. The petition stands allowed.
12. It is hereby ordered.
DELIVERED, DATED AND SIGNED AT NYERI THIS 8th DAY OF JULY, 2021.
F. MUCHEMI
JUDGE
JUDGEMENT DELIVERED THROUGH VIDEO LINK THIS 8TH DAY OF JULY, 2021.