[2023] KEHC 22816 (KLR)
The court held that the applicant could not raise the issue of his age at the resentencing stage, as it was not raised during trial or appeal. However, applying the Supreme Court's guidance in the Muruatetu case, the court found that the mandatory life sentence previously imposed should be set aside. After...
Source-derived case information.
- Citation
- [2023] KEHC 22816 (KLR)
- Parties
- Applicant: PGM; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 34 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Resentencing Application Following Conviction and Sentence
- Outcome
- Application partially allowed. Life sentence set aside and substituted with a custodial sentence of twenty years from October 28, 2011.
- Judges
- HK Chemitei
- Legal Topics
- Sentencing Principles, Juvenile Offenders, Life Imprisonment, Resentencing, Muruatetu Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PGM
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Resentencing Application Following Conviction and Sentence
Legal Issues
- 1 Whether the applicant, convicted and sentenced to life imprisonment, is entitled to resentencing on the basis that he was a minor at the time of the offence.
- 2 Whether the life sentence should be set aside and substituted with a definite term in light of the Supreme Court decision in Muruatetu.
Ratio Decidendi
The court held that the applicant could not raise the issue of his age at the resentencing stage, as it was not raised during trial or appeal. However, applying the Supreme Court's guidance in the Muruatetu case, the court found that the mandatory life sentence previously imposed should be set aside. After considering the resentencing and prison reports, and despite negative aspects in the applicant's conduct while in custody, the court exercised its discretion to substitute the life sentence with a custodial sentence of twenty years, effective from the original sentencing date of October 28, 2011.
Court Disposition
Application partially allowed. Life sentence set aside and substituted with a custodial sentence of twenty years from October 28, 2011.
Orders
- The life imprisonment sentence against the applicant is set aside.
- The applicant is sentenced to twenty (20) years imprisonment from October 28, 2011.
Full Case Text
Judgment text and source record
25 paragraphs
PGM v Republic (Miscellaneous Criminal Application 34 of 2020) [2023] KEHC 22816 (KLR) (27 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22816 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application 34 of 2020
HK Chemitei, J
September 27, 2023
Between
PGM
Applicant
and
Republic
Respondent
(Judgment dated October 28, 2011 by Ouko J (as he then was) Criminal Case 20 of 2009 )
Ruling
1. In his undated chamber summons filed on November 20, 2019 at Nairobi before being transferred to Nakuru the applicant prayed that this court does determine the appropriate sentence which should be meted against him as by the time of the commission of the offence he was under 18 years and therefore a minor.
2. The applicant went ahead and cited several legal authorities to back up his claim. He prayed that the life sentence meted on him ought to be set aside and a definite period be imposed.
3. The learned state counsel opposed the application arguing that the issue of age was a fundamental one which ought to have been determined at trial and or appellate level. It was too late for it to be raised now. He urges the court to dismiss the application.
4. The court has perused the application including the judgment of this court dated October 28, 2011 by Ouko J (as he then was). It is true that the issue of age was not raised and the applicant cannot purport to raise it at this juncture.
5. In my view the applicant simply ought to have brought himself within the purview of the Muruatetu case as espoused by the Supreme court of Kenya. The same applies in all fours to this matter. I shall proceed to exercise the discretion of this court on those lines.
6. I have perused the resentencing report dated October 4, 2021 which is on record. The said report opines that the applicant may undergo a three years’ probation period so as to ensure that his anger is managed and well guided accordingly.
7. Taking the totality of the issues raised therein I do not think that this is a case befitting a non-custodial sentence. There is also a report from prison dated October 13, 2021 which does not paint the applicant well. It was alleged that he was among some prisoners who extorted money from members of the public and fermenting strikes that is why he was being transferred to another prison.
8. Nonetheless in view of the Muruatetu authority I shall set aside the life imprisonment meted against the applicant and substitute it with a custodial sentence of Twenty (20) years from October 28, 2011.
9. Orders accordingly.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 27THSEPTEMBER 2023. H K CHEMITEIJUDGE