[2019] KEHC 11553 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APPLICATION NO.145 OF 2018

PETER SABERU LETU....................................................................APPLICANT

VERSUS

REPUBLIC.....................................................................................RESPONDENT

RULING

The Applicant, Peter Saberu Letu was in 1999 charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on 15th March 1999 at Mini Bakery in Industrial Area in Nairobi, the Applicant, jointly with others not before court, while armed with a pistol robbed the complainant of Kshs.112,237/- and at or immediately before or immediately after the time of such robbery threatened to shoot the complainant. The Applicant pleaded not guilty to the charge. After full trial, he was convicted as charged. He was sentenced to death. His first appeal to the High Court was dismissed on 19th September 2004. His second appeal to the Court of Appeal was disallowed on 20th September 2013. That would have been the end of the matter but for the window opened by the Supreme Court in Francis Karioko Muruatetu –vs- Republic [2017] eKLR which declared mandatory death sentences to be unconstitutional.

The Applicant applied to this court for resentencing. He told the court that he has been in lawful custody since 14th March 1999 when he was arrested. He was thirty-two (32) years old at the time. He has been in prison for a period of twenty (20) years. While in prison, he got a stroke after falling down while constructing a house. The resulting injury meant that he is now physically disabled. He told the court that he was remorseful for the offence that he committed. Since his incarceration, he has become a model prisoner. He is well behaved and disciplined. He attached copies of letters of recommendation written by the officer in-charge Kamiti Prison. In one of the recommendations, the clinical officer in-charge of the prison made the following observations:

“He is a known hypertensive since 2000…he also sustained a spinal injury 2004 secondary to a fall from a height while at Naivasha GK Prison where he was referred to Kenyatta National Hospital (where) he was attended accordingly but the patient is still unable to walk. He is on wheelchair, and is currently on follow-up at KNH physiotherapy clinic. The patient is facing a lot of challenges while being in custody especially in using washrooms, bathing or even washing his own clothes with his medical problems…”

Another prison’s officer observed that:

“The inmate is having a medical record and is confined to a wheelchair. He is facing a lot of challenges while being held in custody which is making his stay in prison to become difficult especially when using washrooms, bathing and washing his own clothes as per the doctors medical report. The prisoner is of clean record having not offended prison discipline which is worth emulating by fellow inmates.”

Mr. Momanyi for the State did not oppose the application for resentencing but urged the court to consider the circumstances in which the offence was committed and the period that the Applicant has been in lawful custody.

The Supreme Court in the Francis Karioko Muruatetu decision gave the following guidelines when this court will be considering the Applicant’s application on re-sentencing:

“[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. This notwithstanding, we are obligated to point out here that paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines states that:

“25. GUIDELINE JUDGMENTS

25. 1 Where there are guideline judgments, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bounded by it. It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defence counsel to inform the court of existing guideline judgments on an issue before it.””

In the present application, it was clear that the Applicant has reformed in the period that he has been in prison. It was unfortunate that while serving his sentence he was injured to the extent that he has lost his power of locomotion. He is physically disabled. He uses a wheelchair to enable his movement. The prison authorities indicated to the court that the Applicant is a model prisoner. He is disciplined and is a role model to other prisoners. This court agrees with the Applicant that the period of twenty (20) years that he has been in prison is sufficient punishment. He has paid his just debt to the society. He is ready to return back to the society.

In the premises therefore, this court allows the Applicant’s application. The court commutes the custodial sentence that was imposed on the Applicant to the period served. The Applicant is ordered set at liberty forthwith and released from prison unless otherwise lawfully held. It is so ordered.

DATED AT NAIROBI THIS 4TH DAY OF JULY 2019

L. KIMARU

JUDGE