[2019] KEHC 894 (KLR)
The court found that the mandatory death sentence imposed on the petitioner was unconstitutional in light of the Supreme Court's decision in Francis Muruatetu. The court considered the circumstances of the offence, including the use of circumstantial evidence, the manner in which the offence was committed, and the...
Source-derived case information.
- Citation
- [2019] KEHC 894 (KLR)
- Parties
- Applicant: Priscilla Kanario; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 29 of 2019
- Procedural Posture
- Criminal Resentencing / Ruling on Resentencing After Appeal Dismissed
- Outcome
- death sentence set aside and substituted with 20 years imprisonment
- Judges
- A Mabeya
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Judicial Discretion, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Priscilla Kanario
Applicant
Republic
Respondent
Procedural Posture
Criminal Resentencing / Ruling on Resentencing After Appeal Dismissed
Legal Issues
- 1 Whether the mandatory death sentence for murder under section 204 of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Muruatetu.
- 2 Whether the petitioner is entitled to resentencing and, if so, what sentence is appropriate given the circumstances of the offence.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the petitioner was unconstitutional in light of the Supreme Court's decision in Francis Muruatetu. The court considered the circumstances of the offence, including the use of circumstantial evidence, the manner in which the offence was committed, and the lack of explanation from the petitioner regarding the deceased's body. The court also took into account the mitigating factors and the submissions of both parties. Ultimately, the court exercised its discretion to set aside the death sentence and substitute it with a term of 20 years imprisonment, to run from the date of the original sentence.
Court Disposition
death sentence set aside and substituted with 20 years imprisonment
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to 20 years imprisonment.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
PETITION NO. 29 OF 2019
PRISCILLA KANARIO........................PETITIONER
VERSUS
REPUBLIC...........................................RESPONDENT
RULING ON RE-SENTENSING
1. The petitioner, Priscilla Kailikia, was together with others charged before this Court with murder contrary to section 203 as read with section 204 of the Penal Code. The information charged that on 11/2/2006 at Kangeta Location, in Igembe District within Meru County, the petitioner with 4 others murdered Zakayo Michubu Kaumbuthu.
2. After trial, they were found guilty and sentenced to death. Being aggrieved by that decision, they appealed to the Court of Appeal which appeal was dismissed on 11/7/2019.
3. Vide her Motion on Notice dated 8/8/2019, the petitioner petitioned this Court to review her sentence on the basis of the Supreme Court decision in the case of Francis Muruatetu and Others vs Republic [2017] eKLR.
4. In that case, the Supreme Court of Kenya held that the mandatory nature of the death sentence under Section 204 of the Penal Code was unconstitutional as it denied the Court its discretion in sentencing. The Court proceeded to set out the criteria or the principles that should guide a Court in sentencing. Some of the considerations are age of the offender, being a first offender, whether the offender pleaded guilty, the character and record of the offender, commission of the offence in response to gender-based violence, remorsefulness of the offender, the possibility of reform and social re-adaptation of the offender and any other factor that the Court considers relevant.
5. I have considered the foregoing and the circumstances under which the offence was committed. The petitioner and her co-accused were convicted on circumstantial evidence. They were seen carrying the body of the deceased on the material day at about 7 am. They were unable to give an explanation as to how they came by the body of the deceased. The post mortem report showed that the body had burns on the right forearm, fracture of the left rib, blood in the chest and a fracture of the skull. The death must have been painful.
6. The state urged that the death sentence be maintained or if substituted, a sentence of not less than 25 years should be meted out to the petitioner.
8. Accordingly, taking into consideration the facts of the case and how the offence was committed as well as the mitigation, I set aside the death sentence and substitute therefor the sentence of 20 years. The sentence shall run from the date the petitioner was first sentenced, that is, 8/2/2008.
DATEDand DELIVEREDat Meru this 5th day of December, 2019.
A. MABEYA
JUDGE