[2020] KEHC 7457 (KLR)
The court found that the petitioner was entitled to resentencing in light of the Supreme Court’s decision in Muruatetu, which declared the mandatory death penalty for murder unconstitutional. The court considered the petitioner’s period already served (17 years), evidence of reform through vocational and biblical...
Source-derived case information.
- Citation
- [2020] KEHC 7457 (KLR)
- Parties
- Appellant: Peter Kuria Gachegwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 120 of 2019
- Procedural Posture
- Criminal Petition / Resentencing Application Following Conviction and Sentence for Murder
- Outcome
- petition allowed in part; petitioner resentenced to 20 years' imprisonment from 15/5/2006
- Judges
- HK Chemitei
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Mitigating Factors, Resentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kuria Gachegwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing Application Following Conviction and Sentence for Murder
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Muruatetu declaring the mandatory death penalty unconstitutional.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and mitigating factors.
Ratio Decidendi
The court found that the petitioner was entitled to resentencing in light of the Supreme Court’s decision in Muruatetu, which declared the mandatory death penalty for murder unconstitutional. The court considered the petitioner’s period already served (17 years), evidence of reform through vocational and biblical training, and the mitigating and aggravating circumstances of the offence. Guided by comparable appellate decisions and the Sentencing Policy Guidelines, the court determined that a sentence of 20 years’ imprisonment, commencing from 15/5/2006, was appropriate and proportionate to the offence and the petitioner’s demonstrated rehabilitation.
Court Disposition
petition allowed in part; petitioner resentenced to 20 years' imprisonment from 15/5/2006
Orders
- The petitioner is resentenced to twenty (20) years’ imprisonment commencing from 15/5/2006.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CRIMINAL PETITION NO. 120 OF 2019
PETER KURIA GACHEGWA..............................................PETITIONER
VERSUS
REPUBLIC.............................................................................RESPONDENT
RULING
1. The Petitioner herein has filed this petition requesting this court to consider resentencing him pursuant to the decision of the Supreme Court in Francis Karioko Muruatetu & Another =Vs= Republic [2017] eKLRwhere the court held that:
“(69) consequently, we find that section 204 of the Penal Code is inconsistent with the constitution and invalid to the extent that it provides for the mandatory death sentence for murder.”
2. The petitioner was charged, convicted and sentenced to death for the offence of murder contrary to section 202as read withsection 203of thePenal Code (Chapter 63 of the Laws of Kenya) at a trial before the High Court at Kitale in Criminal Case No. 26 of 2002.
3. The Petitioner now wishes to take advantage of the Supreme Court decision in Francis Karioko Muruatetu (Supra) for a re- sentencing. He attached certificates to his petition arguing that he has reformed having undertaken biblical classes as well as passing a Upholsterer Grade 1, 11 and 111 trade test.
4. The learned Counsel for the State, Mr Omooria in his submissions dated 14/01/2020 urged this court not to interfere with the sentence imposed on the petitioner but to consider the circumstances under which he committed the offence. That is, in stabbing the deceased, his actions were not justified in any way. It was the state’s position that the petitioner does not deserve reduction of the death sentence to a lesser definite sentence.
5. It is worth noting that the Supreme Court in the Muruatetu case, considered that in re-sentencing in a case of murder, the following mitigating factors would be applicable as a guide namely:-
(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 relation 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.
6. Under the Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary state (at para. 4. 1), the courts are urged to consider that the sentence imposed must meet the following objectives;
Retribution; To punish the offender for his/her criminal conduct in a just manner.
Deterrence; To deter the offender from committing a similar offence subsequently as well as discourage other people from committing similar offences.
Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.
Restorative justice: To address the needs arising from criminal conduct such as loss and damages.
Community protection: To protect the community by incapacitating the offender.
Denunciation: To communicate the community’s condemnation of the criminal conduct.
7. In determining this petition, it is imperative to look at the sentences which have been imposed by other Courts following the decision in the Muruatetu case in offences of this nature. The Court of Appeal decision post the Muruatetu Case provide some guidance on the appropriate sentence. In Jonathan Lemiso Ole Keni v Republic NRB Criminal Appeal No.51 of 2016 (2018) eKLRwhere the petitioner shot a person without any provocation, the court imposed a sentence of 30 years’ imprisonment. In John Ndede Ochodho alias Obago v Republic KSM CA Criminal Appeal No. 120 of 2014 (2018) eKLR,the Court of Appeal upheld a sentence of 25 years in a case of murder where the petitioner assaulted the deceased several times causing his death.
8. In the petition before me, I note that the petitioner has since served 17 years of the sentence. I am also of the view that from the certificates issued to him, he has reformed somewhat.
9. Taking into account the mitigating and aggravating factors , I have considered the entirety of the facts and therefore I hereby re-sentence the Petitioner to twenty (20) years’ imprisonment commencing from 15/5/2006.
Signed, Dated and Delivered at Kitale on this 5th day of March, 2020.
________________
H.K. CHEMITEI
JUDGE
5/3/2020
In the presence of:-
Ms Kagali for the Respondent
Applicant – present
Court Assistant – Kirong
Ruling read in open court