[2019] KEHC 11992 (KLR)
The court held that following the Supreme Court's decision in Francis Karioko Muruatetu, the mandatory death sentence previously imposed on the applicant was unconstitutional, and the court had discretion to resentence. In exercising this discretion, the court considered the applicant's age, the nine years already...
Source-derived case information.
- Citation
- [2019] KEHC 11992 (KLR)
- Parties
- Applicant: Peter Musau Mutua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 599 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Resentencing After Supreme Court Decision on Mandatory Death Sentence
- Outcome
- Death sentence substituted with thirty years imprisonment, backdated to 13/01/2011.
- Judges
- J Wakiaga
- Legal Topics
- Resentencing, Mandatory Death Sentence, Provocation, Victim Impact Statement, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Musau Mutua
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Resentencing After Supreme Court Decision on Mandatory Death Sentence
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu outlawing the mandatory nature of the death sentence.
- 2 What is the appropriate sentence for the applicant given the circumstances of the offence and the period already served in custody.
Ratio Decidendi
The court held that following the Supreme Court's decision in Francis Karioko Muruatetu, the mandatory death sentence previously imposed on the applicant was unconstitutional, and the court had discretion to resentence. In exercising this discretion, the court considered the applicant's age, the nine years already served, the nature and gravity of the offence, the applicant's conduct after the offence (including burying the victim and continuing as if nothing had happened), and the ongoing trauma to the victim's family. The court found that a stiffer sentence than the fifteen years proposed by the applicant was warranted to serve as a deterrent. Consequently, the court substituted the...
Court Disposition
Death sentence substituted with thirty years imprisonment, backdated to 13/01/2011.
Orders
- The death sentence previously imposed on the applicant is set aside.
- The applicant is sentenced to thirty (30) years imprisonment, backdated to 13/01/2011.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
MISC. CRIMINAL APPL. NO. 599 OF 2018
ARISING FROM HIGH COURT CRIMINAL CASE NO. 8 OF 2011
PETER MUSAU MUTUA ...........................................................APPLICANT
VERSUS
REPUBLIC ..............................................................................RESPONDENT
RULING
1. The Applicant was convicted and sentenced by this court to suffer death as the law was then. However after the court passed the sentence the Supreme Court in the now famous FRANCIS KARIOKO MURUATETUcase outlawed the mandatory nature of death sentence and gave the court the discretion to pass an appropriate sentence.
2. The Applicant therefore approached the court to be re-sentenced and having withdrawn the Appeal which he had filed, the court now has jurisdiction to re-sentence the same.
3. In his submissions he has sought to be sentenced to fifteen (15) years and the nine (9) years he had been in custody to be taken into account as provided for under Section 333of the Criminal Procedure Code.
4. The court called for Pre-sentencing report where it is confirmed that the Applicant and the victim were working together at Karen. The Applicant alleges that the victim attempted to poison him and as a result of the said provocation he hit her.
5. I have however noted that after the commission of the offence the Appellant buried the victim at a place where he was cooking and continued to cook as if nothing had happened.
6. I have also looked at the Victim’s Impact Statement where it is clear that they are still traumatized by her death though the Christians in their family have following on the footsteps of their founder forgiven the Appellant.
7. I have taken note that the Applicant is forty two (42) years old and has been in prison for a period of nine (9) years, whereas he has proposed a sentence of fifteen (15) years. Having taken into account the nature of the offence and the action of the Applicant thereafter, I am persuaded that a stiffer sentence is still necessary so as to act as a deterrence to would be offenders.
8. I have said before and will repeat that every person has a right to life and should not have the same taken away from him/her simply because they are in a relationship which is not working.
9. The Applicant broke the trust of the family that had employed him and took him into their home only for him to kill the victim thereat and to bury her body in their compound. The Applicant should have known better that crime does not pay and even if the deceased attempted to poison him as alleged, he had better ways to resolve their romantic problems than to hit her, kill her and bury her.
10. I would therefore substitute the death sentence with an imprisonment period of thirty (30) years backdated to 13/01/2011 when the Applicant first appeared before Okwengu J. as she then was.
Dated, delivered and signed at Nairobi this 30th day of October, 2019.
.........................
J. WAKIAGA
JUDGE
In the presence of:-
Applicant in person for the Applicant/Accused
Mr. Okeyo for the State
Accused - present
Court assistant: Karwitha