[2018] KEHC 3717 (KLR)

IN THE HIGH COURT OF KENYA

AT NAKURU

MISC. CRIMINAL APPLICATION NO. 98 OF 2018

REPUBLIC.....................................................STATE

VERSUS

SAMUEL GITHINJI KIMARU......PETITIONER

JUDGMENT UPON APPLICATION FOR RE-SENTENCING

1. Samuel Githinji Kimaru, the Applicant, and two other persons were jointly charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code. The Applicant and one of the Co-Accused were convicted and sentenced to death as was mandatorily required by statute at the time. One of the Co-Accused Persons was acquitted while the other died after conviction.

2. The particulars of the offence were that on 27th July 2008 at Nakuru Township in Nakuru District of the Rift Valley Province, jointly with others not before the Court, being armed with dangerous weapons namely pistols, robbed Maurice Nyabagosi of a motor vehicle registration number KAV 781C Toyota Corolla saloon station wagon white in colour valued at Kshs. 550,000; a mobile phone make Samsung A800 valued at Kshs. 13,000; cash money Kshs. 100; ATM Card all valued at Kshs. 563,100/- and immediately before or immediately after such robbery, used actual violence to the said Maurice Mwita Nyabagosi. There was a second count of being in possession of ammunition without a firearm certificate contrary to section 4(1) as read with section 4(3) of the Firearms Act.

3. After a fully-fledged trial, the Appellant and one of his Co-Accused were convicted and sentenced to death by the Trial Court. Their appeal to the High Court was dismissed as was the Applicant’s appeal to the Court of Appeal.

4. Having reached the end of the tether, the Applicant has approached this Court, following the decision by the Supreme Court of Kenya in Francis Karioko Muruatetu & Another v Republic [2017] eKLR. In that case, the Supreme Court outlawed mandatory death penalty for murder as unconstitutional and struck down section 204 of the Penal Code to the extent that it prescribed mandatory death sentence upon conviction for murder.

5. The reasoning in Muruatetu Case respecting section 204 of the Penal Code (the penalty section for murder), has been extended by the Court of Appeal to the mandatory death penalty in robbery with violence cases and probably all other similar mandatory death sentences. That was in William Okungu Kittiny v R [2018] eKLR.

6. Consequently, the law of the land as it stands today, therefore, is that the maximum penalty for both murder (under section 204 of the Penal Code) and robbery with violence (under section 296(2) of the Penal Code) is the death penalty but the Sentencing Court has discretion to impose any other penalty that it deems fit and just in the circumstances.

7. Based on these new developments, the Applicant has approached this Court seeking re-sentencing. In Benson Ochieng & Another v Republic (Nakuru High Court Misc. Application No. 45 of 2018), I reached the conclusion that the High Court can invoke its original jurisdiction bequeathed to it in Article 165(3)(a) of the Constitution. Addressing the advisory by the Supreme Court to those on death row pursuant to the mandatory death penalty provisions the Supreme Court had just declared unconstitutional that they should await a Taskforce ordered by the Supreme Court and not approach the Supreme Court with individual petitions, I had this to say:

As I understand it, this Application is pivoted on Article 165(3)(a) of the Constitution. That clause gives the High Court unlimited original jurisdiction in criminal and civil matters. On the other hand, the Supreme Court adviced similarly-positioned would-be Petitioners to await the formation of the Taskforce which will recommend the way forward for the thousands of prisoners presently serving the death sentence. However, the position of the Supreme Court was quite specific: it indicated that it will not consider individual Petitions presented to it by the prisoners after enunciating the constitutionality of the mandatory death sentence.

I have taken the position that the Supreme Court neither intended nor achieved the purpose of limiting the jurisdiction of this Court to consider applications for re-sentencing by individuals such as the Applicants who were sentenced to death under the then mandatory provisions of the Penal Code. A progressive and purposive reading of the constitutional provisions relied on by the Supreme Court to reach its outcome in the Muruatetu Case would lead us to this conclusion. The Court, may, of course, determine for prudential reasons, to await the work of the Taskforce or other docket management considerations.

8. It is for this reason that I take jurisdiction to re-consider the sentence imposed on the Applicant herein following the Muruatetu Case.

9. The facts of the armed robbery that are relevant for sentencing purposes can be gleaned from the graphic testimony of the Complainant in the Trial Court which was accepted by all three Courts as credible. He described the robbery in the following terms:

I am a taxi driver and I used to drive a taxi until I was robbed. I do recall on 27th July, 2008. On the day I was near Akamba Officer with my taxi waiting for customers. While there, Peter, my well known customer (Accused 1) called me. He told me that he had a visitor at Akamba Office. I have a motor vehicle registration number KAV 781C Toyota Corolla. While waiting at the Akamba Office, Accused 2 [Applicant], came to my car. I asked him if he was a customer. He said he wanted the owner of the motor vehicle. I said I knew where the owner was. I suspected him. Later, Accused 1 called me after five minutes. He asked if I had seen his visitor. He told me the visitor was the one who had approached me. The same man came again. He searched the motor vehicle. He sat at the rear right behind me. We were at Kenol Petrol Station. The lights were bright. I fueled there. I asked him to give me Kshs. 100/- and he said he had no money. We now proceeded to medical staff quarters wehre Accused 1 said he used to stay. On the way, I saw Accused 1 standing on the road within the staff qarters compound. I stopped. Accused 1 came. We talked for a short while. He asked me how I was to pay him. I told him Kshs. 300/-. I saw Accused 1 enter his hand in the jacket. He picked a pistol. He ordered me to move to the back seat. I could not believe what he said. I got hold of that pistol. Accused 2 held me from behind. I screamed for help. They told me to stop lest they shoot me. I feared and surrendered. I moved to the back seat. I was told to lie flat. Later, Accused 1 took the Co-driver’s seat. He asked for the keys. While there, a 3rd Person emerged from a farm plantation nearby. The man took the driver’s seat. They drove off. It took about five minutes. At the scene there was electricity light from the buildings.

10. In urging substitution of the death sentence with a light term sentence, the Applicant told the Court to consider that he had already lost of his youth in prison; that he has been incarcerated for the last ten years; that he has a young family that still needs him.

11. The Applicant told the Court that he was remorseful and regrets his actions; that he is a first offender; and that he is a changed man. He told the Court that he has now learnt that crime does not pay and that he will spent the rest of his days preaching that to young men. In addition, he submitted, while in prison, he trained in masonry; carpentry and upholstery. To underscore that he has reformed, he produced certificates of theological training.

12. Mr. Chigiti, the Prosecution Counsel, was not as impressed with the Applicant’s submissions and calls for leniency. Mr. Chigiti submitted that there are many aggravating factors in this case:

a. That many guns were used in the robbery;

b. That actual violence was used in the course of the robbery; and

c. That the robbery involved an organized group.

13. In the Muruatetu Case, the Supreme Court approvingly cited the Judiciary Sentencing Policy and Guidelines. In particular, the Supreme Court endorsed the four-tier methodology for determining custodial sentence as well as the aggravating and mitigating circumstances catalogued in Paragraphs 23. 7 and 23. 8 of the Sentencing Guidelines. Even then, of course, the Supreme Court was clear that those Sentencing Guidelines cannot substitute the Court’s discretion in sentencing.

14. Mr. Chigiti asked the Court to consider meting out life imprisonment in this case.

15. In the Benson Ochieng’ Case, I explained the position that the correct entry point for sentencing for robbery with violence is fourteen years. This is because “simple” robbery under section 296(1) of the Penal Code attracts a minimum sentence of fourteen years imprisonment. It therefore seems logical that the minimum sentence for robbery with violence should be fourteen years imprisonment. This is because robbery with violence under section 296(2) is, by definition, an aggravated robbery which has been singled out by the Legislature for enhanced penalty due to the impact of the crime on the victim and the society. This position is in accord with other decisions of the High Court on this point. See, for example, decisions by Majanja J. in Michael Kathewa Laichena and Another v Attorney GeneralMERU High Court Crim. Pet. No. 19 of 2018 (UR) and John Kathia M’itobi v Republic [2018] eKLR. An entry point of fourteen years for robbery with violence, in my view, is also appropriate for reason of uniformity and parity in sentencing.

16. In the present case, I have identified the following mitigating circumstances:

a. The Applicant was a first offender;

b. The Applicant has demonstrated genuine and is willing to use his experiences to teach young people to avoid crime;

c. The Petitioner has demonstrated capacity for reform and rehabilitation through his skills training in masonry; carpentry and upholstery; and

d. The Applicant has a young family.

17. I also identified the following aggravating factors:

a. The Applicant was armed – with a gun;

b. The Applicant was part of a seemingly well-organized gang;

c. The assailants used actual violence on the Complainant and it seemingly had life-long effects on him to the extent that he gave up driving taxis.

18. Taking all these factors into consideration, I find that even after giving due weight to the mitigating circumstances, there are substantial aggravating circumstances in this case. In particular, even while accepting that the Applicants are demonstrably reformed and rehabilitated, it is important for the Court to vividly announce the societal denunciation for the heinous and socially damaging crime the Applicants committed: the use of multiple guns by an organized gang to commit armed robbery. Such a sentence not only communicates to the Applicant the sense of societal opprobrium to the crime; but other would-be offenders of the consequences of the crime

19. In my view, therefore, all factors considered, I substitute the death sentence imposed on the Applicant with a sentence of twenty (20) years imprisonment commencing the date of sentencing before the Trial Court that is from 19/02/2009.

20. Orders accordingly.

Dated and delivered in Nakuru this 4th day of October, 2018

…………..…..…..

JOEL NGUGI

JUDGE