[2020] KEHC 4537 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL CASE NO. 55 OF 2020

(Coram: Odunga, J)

REPUBLIC..............................................................................PROSECUTOR

VERSUS

SAMWEL MUNYOKI MULUNGU..............................................ACCUSED

RESENTENCE

1. The applicant herein,Samwel Munyoki Mulungu, was charged before this court in this case with murder contrary to Section 203 as read with Section 204 of the Penal Code the facts being that on 16th September, 2010 at about 7. 30 pm at Kyimbani Village, Mungángá Sub-location, Miambani Location in Kitui District within Eastern Province, he murdered John Ndemwa Munyokiwho was his son.

2. After hearing the said case, Jaden, J on 29th October, 2015 found the applicant guilty and convicted him and he was accordingly sentenced to death as was prescribed by the law. The said sentence was subsequently commuted to life sentence which is the sentence the accused is currently serving.

3. However, based on the decision of the Supreme Court in Petition Nos. 15 and 16 of 2015 – Muruatetu & Others vs. Republic, this Court on 17th June, 2020 set aside the death sentence imposed on the accused and directed that a sentence re-hearing be undertaken. This decision is therefore restricted to resentencing only.

4. From the Probation Officer’s Report, the accused sold his land in order to get money to enrol his son, the deceased, in a driving school. However, since the purchase price was being paid in instalment, the accused was tempted into spending much of it in drinking rather than towards the purpose for which it was meant. As a result, the deceased told the buyer to stop giving the money to the accused. As a result, differences arose between the father and the son. Just before the incident leading to the death of the deceased, the deceased had been sent home from the school for examination fees. However, there was no money as the accused had spent the same and differences arose between them. The following day, the accused returned home drunk and a scuffle arose between the two of them resulting into the deceased being shot by an arrow by the accused as a result of which the deceased sustained fatal injuries. As a result, members of the public descended upon the accused beating him and injuring his backbone.

5. It is important to point out that a resentencing hearing or any other sentencing hearing for that matter is neither a hearing de novo nor an appeal. Such proceedings are undertaken on the understanding that conviction is not in issue. It therefore follows that in those proceedings the accused is not entitled to take up the issue of the propriety of his conviction. He must proceed on the understanding that the conviction was lawful and restrict himself to the sentence and address the court only on the principles guiding the imposition of sentence and on the appropriate sentence in the circumstances. Similarly, the court can only refer to the evidence adduced in so far as it is relevant to the issue of sentencing but not with a view to making a determination as to whether the conviction was proper. While the court is entitled to refer to the evidence in order to determine whether there existed aggravating circumstances or otherwise for the purposing of imposing the sentence, it is not proper for the court to set out to analyse the evidence as if it is meant to arrive at a decision on the guilt of the accused.

6. That the possibility of reform and social re-adaptation of the offender is to be considered in sentence re-hearing, in my view implies that where the accused has been in custody for a considerable period of time the Court ought to consider calling for a pre-sentencing report and possibly the victim impact report in order to inform itself as to whether the accused is fit for release back to the society. In my view, fairness to the accused where a sentence re-hearing is considered appropriate would require a consideration of the circumstances prior to the commission of the offence, at the time of the trial and subsequent to conviction. The conduct of the accused during the three stages may therefore be a factor to be considered in determining the appropriate sentence. The need to protect the society clearly requires the Court to consider the impact of the incarceration of the offender whether beneficial to him and the society or not, hence the necessity for considering a pre-sentencing report.

7. As appreciated by the Supreme Court in Muruatetu Case (supra):

“Comparative foreign case law has also shown that the possibility of review of life sentences and the fixing of minimum terms to serve a life sentence before parole or review, is intrinsically linked with the objectives of sentencing. In Kenya, many courts have highlighted the principles of sentencing. One such case is the High Court criminal appeal decision in Dahir Hussein v. Republic Criminal Appeal No. 1 of 2015; [2015] eKLR,where the High Court held that the objectives include: “deterrence, rehabilitation, accountability for one’s actions, society protection, retribution and denouncing the conduct by the offender on the harm done to the victim.”The 2016 Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of sentencing at page 15, paragraph 4. 1 as follows:

“Sentences are imposed to meet the following objectives:

1. Retribution: To punish the offender for his/her criminal conduct in a just manner.

2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.

3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.

4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.

5. Community protection: To protect the community by incapacitating the offender.

6. Denunciation: To communicate the community’s condemnation of the criminal conduct.”

The sentencing policy states at paragraph 4. 2 that when carrying out sentencing all these objectives are geared to in totality, though in some instances some of the sentences may be in conflict.”

8. In my view where the accused has spent a considerable period of time in custody, it may be prudent for the Court while conducting a sentence re-hearing, to direct that an inquiry be conducted by the probation officer and where necessary a pre-sentencing and victim impact statements be filed in order to enable it determine whether the accused has sufficiently reformed or has been adequately rehabilitated. This is so because the circumstances of the accused in custody may have changed either in his favour or otherwise in order to enable the Court to determine which sentence ought to be meted. It may be that the accused had sufficiently reformed to be released back to the society. It may well be that the conduct of the accused while in custody may have deteriorated to the extent that it would not be in the interest of the society to have him released since one of the objectives of sentencing is to protect the community by incapacitating the offender.

9. In Muruatetu Case, the Supreme Court relied on the case of Vinter and others vs. the United Kingdom (Applications nos. 66069/09, 130/10 and 3896/10)in which the Court held that:-

“111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.”

10. I must however state that the said reports being reports which are not subjected to cross-examination in order to determine their veracity, are just some of the tools the court may rely on in determining the appropriate sentence. They are therefore not necessarily binding on the court and where there is discrepancy regarding the contents of the reports and information from other sources such as from the parties themselves and the prison, the court is at liberty to decide which information to rely on in meting out its sentence. To rely on the said reports as the gospel truth, in my view, amounts to abdication of the court’s duty of adjudication to probation officers. While the same ought to be treated with great respect, it is another thing to accept them hook, line and sinker. They however ought not to be simply ignored unless there are good reasons for doing so.

11. In other words, the court appreciated that the circumstances under which the initial sentence was imposed may change as one serves out the sentence. Accordingly, in undertaking a resentencing the court must consider whether the circumstances of the accused during his/her incarceration have changed for the better or for worse. It is therefore important that not only should a report be availed to the court concerning the position of the victim’s family and the offender’s family but also the report from the prison authorities regarding the conduct of the offender during the period of incarceration. It is therefore my view that where a resentencing is directed the trial court ought to consider the filing of a probation report in order to assist it arrive at an appropriate report. However, the failure to do so is not necessarily fatal to the sentence.

12. In my view, it does not follow that in resentencing, the court is obliged to reduce the initial sentence. What is required of the court undertaking the resentencing is to look at all the circumstances of the case and to make a determination whether the appellant’s incarceration has achieved the objective for which he was sentenced such as punishment, deterrence, public protection and rehabilitation. In other words, the court is not to be bound only by the appellant’s conduct that led to his incarceration but also his conduct and circumstances since the said incarceration.

13. According to Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 of 2015:

“[71] 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.

14. I associate myself with views of J.Ngugi, J in Benson Ochieng & Another vs. Republic [2018] eKLR that:

“Re-phrasing the Sentencing Guidelines, there are four sets of factors a Court looks at in determining the appropriate custodial sentence after determining the correct entry point (which, as stated above, I have determined to be fifteen years imprisonment). These are the following:

a. Circumstances Surrounding the Commission of the Offence:The factors here include:

i. Was the Offender armed? The more dangerous the weapon, the higher the culpability and hence the higher the sentence.

ii. Was the offender armed with a gun?

iii. Was the gun an assault weapon such as AK47?

iv. Did the offender use excessive, flagrant or gratuitous force?

v. Was the offender part of an organized gang?

vi. Were there multiple victims?

vii. Did the offender repeatedly assault or attack the same victim?

b. Circumstances Surrounding the Offender:The factors here include the following:

i. The criminal history of the offender: being a first offender is a mitigating factor;

ii. The remorse of the Applicant as expressed at the time of conviction;

iii. The remorse of the Applicant presently;

iv. Demonstrable evidence that the Applicant has reformed while in prison;

v. Demonstrable capacity for rehabilitation;

vi. Potential for re-integration with the community;

vii. The personal situation of the Offender including the Applicant’s family situation; health; disability; or mental illness or impaired function of the mind.

c. Circumstances Surrounding the Victim:The factors to be considered here include:

i. The impact of the offence on the victims (if known or knowable);

ii. Whether the victim got injured, and if so the extent of the injury;

iii. Whether there were serious psychological effects on the victim;

iv. The views of the victim(s) regarding the appropriate sentence;

v. Whether the victim was a member of a vulnerable group such as children; women; Persons with disabilities; or the elderly;

vi. Whether the victim was targeted because of the special public service they offer or their position in the public service; and

vii. Whether there been commitment on the part of the offender (Applicant) to repair the harm as evidenced through reconciliation, restitution or genuine attempts to reach out to the victims of the crime.”

15. In my view, fairness to the accused where a sentence re-hearing is considered appropriate would require a consideration of the circumstances prior to the commission of the offence, at the time of the trial and subsequent to conviction. The conduct of the accused during the three stages may therefore be a factor to be considered in determining the appropriate sentence. The need to protect the society clearly requires the Court to consider the impact of the incarceration of the offender whether beneficial to him and the society or not hence the necessity for considering a pre-sentencing report.

16. In its decision the Court referred to Article 10(3) of the Covenant stipulates that—“[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”In my view where the accused has spent a considerable period of time in custody, it may be prudent for the Court while conducting a sentence re-hearing, in order to determine whether the accused has sufficiently reformed or has been adequately rehabilitated to direct that a pre-sentencing report be compiled. This is so because the circumstances of the accused in custody may have changed either in his favour or otherwise in order to enable the Court to determine which sentence ought to be meted. It may be that the accused had sufficiently reformed to be released back to the society. It may well be that the conduct of the accused while in custody may have deteriorated to the extent that it would not be in the interest of the society to have him released since one of the objectives of sentencing is to protect the community by incapacitating the offender.

17. Similarly cited was the decision of the Privy Council in Spence vs. The Queen; Hughes vs. the Queen(Spence & Hughes) (unreported, 2 April 2001) where Byron CJ was of the view that:

“In order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances.There should be a requirement for individualized sentencing in implementing the death penalty.”

18. It was in light of the foregoing that I directed that a probation officer’s report be prepared and filed and the said directions were duly complied with. In the said report, the Probation Officer found that the accused, who is aged 80 years old, used to take care of his now deceased wife and their five children. Since the deceased was their only son, an arrangement was entered into between the accused and his deceased wife under which his late wife entered into a woman to women relationship otherwise known as Iweto in order to get children for the family in order to carry on the accused’s lineage. The said surrogate wife has 6 children and stays at home relying on sponsorship from the church.

19. According to the said report, the accused, who is now partially blind with hearing difficulties and having stomach and backbone complications, is now an invalid who cannot take care of himself having been recently operated on. Accordingly, were he to be released, he would have to be taken care of by his family and one of his daughters has offered to do so. The deceased is described by the community as having been a hardworking man who interacted well with the members. He has close family ties and is regularly visited by his daughters while in prison. He has however been since forgiven by the community and his family since he is remorseful and regrets his actions. The family pleads for leniency in order to enable him reunite with his family and spend his last days at home. In prison he is well spoken of having been since rehabilitated and is taken care of by the inmates.

20. I have considered the circumstances in which the offence was committed and the effect on the family and the community of the same. I have also considered the Probation Officer’s Report as well the mitigating circumstances. I have also considered the submissions by the accused as well as those by Mr Ngetich, Learned Prosecution Counsel. From the probation report, it is clear that the accused’s age and health no longer poses any risk to the community and it is very unlikely that he would repeat a similar offence. Age is clearly a factor to be considered in exercising discretion as regards the sentencing. In Charo Karisa Pembe vs. Republic Mombasa Criminal Appeal No. 22 of 1998 the Court of Appeal expressed itself as hereunder:

“We think that on account of his age as at the date of his sentence on 13th March, 1996, the period of 18 years imprisonment [for manslaughter] was in all the circumstances of the case manifestly excessive and the superior court should not have summarily rejected the appellant’s appeal under section 352(2) of the Criminal Procedure Code. In the result we allow the appellant’s appeal, set aside the order of the superior court summarily rejecting his appeal and admit the same to hearing and under section 3(2) of the Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenta we reduce the sentence of 18 years imprisonment to one of 4 years which shall run from the date of his original sentence – 13th March, 1996. ”

21. I borrow the words of Ojwang, J (as he then was) in Yussuf Dahar Arog vs. Republic [2007] eKLR where he expressed himself as hereunder:

“Such is of course, a maximum sentence and within that constraint, the court has a wide discretion which it exercises on judicial principles. Such principles would I believe, take into account the ordinary span of life of a human being, the general circumstances surrounding the commission of the offence, the possibility that the culprit may reform and become a law-abiding member of the community, the goals of peace and mutual tolerance and accommodation among people – those who are injured and those who have occasioned injury.”

22. In my view the fact that the deceased was the accused own son who lost his life in the hands of the accused himself, that is a much heavier sentence than this Court could ever hope to impose on the accused. He will forever have to live with that psychological trauma for the rest of his life and may have to answer for it in his life hereafter.

23. As stated hereinabove in this case the incarceration of the accused has achieved three objectives of retribution, deterrence and rehabilitation. In my view the 10 years the accused have served in prison in light of his age and health status and the attitude of the community towards him, he has have sufficiently reformed to enable him be reintegrated back to the community in order to be with his family in his sunset years.

24. In the premises, I hereby sentence him to such period as will ensure his release from custody forthwith unless he is otherwise lawfully held.

25. It is so ordered.

26. This Judgement is delivered online through Skype video link due to the circumstances occasioned by the prevailing restrictions resulting from Corona Virus Disease 19 (COVID 19) pandemic.

Read, signed and delivered in open Court at Machakos this 3rd day of July, 2020.

G V ODUNGA

JUDGE

In the presence of:

Mr Ngetich for the State.

CA Geoffrey