[2023] KEHC 25740 (KLR)

Rikombe v Republic (Criminal Petition E025 of 2021) [2023] KEHC 25740 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25740 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Petition E025 of 2021

F Gikonyo, J

November 20, 2023

Between

Festo Rikombe

Petitioner

and

Republic

Respondent

(Revision from Original Conviction and Sentence in Narok CMCR No. 101 of 2009)

Judgment

Sentence Re-hearing 1. Before the is a notice of motion dated 06. 08. 2021. In the said application the petitioner is challenging both conviction and sentence arguing that they were not provided as per the law required and therefore unconstitutional. He claims the mandatory nature of the sentence makes it unconstitutional.

2. The application is brought pursuant to articles 50(2), 27(1), 23(1), 59 (c) and 165(b) of the Constitution, and Section 296(2) of the Penal Code.

Brief Background of this Case 3. The petitioner was charged, convicted, and sentenced to death for the offence of Robbery with violence contrary to section 296(2) of the Penal Code in Narok CMCR No. 101 of 2009.

4. The trial court evaluated the evidence on record and in its judgment concluded that the petitioner (2nd accused person then) was found guilty and convicted in respect to count 1 of robbery with violence and acquitted in count II for being armed with a dangerous weapon namely a toy pistol.

5. The trial magistrate then proceeded to sentence, the petitioner and his co-accused to suffer death as stipulated by the law.

6. Directions of the court.

7. The petition was canvassed by way of written missions. Both parties filed their written missions.

Petitioner’s Mission 8. The petitioner urged this court to re-evaluate the whole proceedings as provided and give a proportionate sentence as the death sentence has already been declared unconstitutional. The petitioner relied on Article 23(1), 165(b), 27(1)(2), 25, 163(7) of the Constitution and the cases of William Okungu Kittiny Vr Republic (KSM) CA Criminal Appeal No. 56 of 2013 [2018] eKLR, Dickson Samuel Odhiambo Vs Republic [2019] eKLR, Wandusi Mafura Vs Republic (ELD) in CR. APP. No. 22 of [2019] eKLR, Michael Kathewa Laichena and Another Vs Republic (2015)eKLR, Joseph Waiharu Waiyoro and Another Vs Republic [2015]eKLR, Fanuel Makezi Akoyo Vs Republic [2019] eKLR, Peter Gitiye Vs Republic [2018]eKLR, Timothy Kariuki Vs Republic [2019] eKLR, Alex Kathurima Vs Republic [2018]eKLR.

9. The petitioner mitted that he is a family man and the only breadwinner to the family, he is 37 years old, he was a first offender and he has embraced fully the rehabilitative programs offered in the prison institution. He is now remorseful. He prays that the time already served is enough for rehabilitation and sets the petitioner at liberty or order for a non-custodial sentence.

10. The petitioner urged this court to consider the time he has already spent in custody prior to conviction when undergoing trial in accordance with section 333(2) and -section 38 of the Criminal Procedure Code. The petitioner relied on the case of Ahamad Abolfathi Mohamed in Cr. Appeal No. 135 of 2016.

11. The petitioner mitted that this court has jurisdiction to hear and determine this application for redress and consider the nature of mandatory sentences which have been declared unconstitutional.

Respondent’s Mission 12. The prosecution opposed the application.

13. The prosecution mitted that the purpose of resentencing is to provide an effective remedy to such injustices arising from a violation of a right or a fundamental freedom. The respondent relied on the case of Michael Kathewa Leichama and Another Vs Republic [2018] eKLR.

14. The respondent mitted that there was no rational reason why the same reasoning of the Supreme Court, which holds that the mandatory death sentence is unconstitutional for depriving the court of discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply the provisions of robbery with violence which do exactly the same thing.

15. The respondent mitted that the trial magistrate without any mitigating factors and without putting into consideration that the petitioner did not use excessive force nor did they unnecessarily injure the complainant during the robbery went ahead to pass a death sentence as was prescribed by the law. The violence unleashed on the victim was not sufficiently serious. The mitigating and aggravating factors were not put into consideration and the trial magistrate was tied to the prescribed law that imposed a mandatory death sentence. The respondent thus conceded to the petition on review of the death sentence. The respondent relied on the cases of James Kariuki Wagana Vs Republic [2018] eKLR, S Vs Mchuru & Another (AR 24/11(2012) ZAKZPHC 6, S Vs Scott Crossley 2008 (1) SACR 223(SCA), Mithu Singh Vs State of Punjab 1983 AIR 473, In The Court of Appeal at Kisumu criminal appeal no. 166/2016 Cyrus Kavai Vs Republic

Analysis And Determination 16. Falling for determination herein is;i.Constitutionality of mandatory death sentence for robbery with violence.

Nature And Scope Of Re-sentencing 17. Re-sentence is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review sentences only. It does not therefore consider conviction. Ordinarily, in re-sentencing, the court will check on the legality or propriety or appropriateness of the sentence. Thus, resentence will be concerned with inter alia, the penalty law, mitigating or aggravating factors, and the objects of punishments.

18. The court is guided by the observation of the Court of Appeal in the case of William Okungu Kittiny v R (2018) eKLR that:“The decision of the Supreme Court only discouraged persons from filing petitions to the Supreme Court but the decision does not prohibit court below it from ordering sentence re-hearing in a matter pending before the courts. By Article 163 (7) of the Constitution, the decision of the Supreme Court has immediate and binding effect on all the other courts. The decision of the Supreme Court opened the door for review of death sentences even in finalized cases”.

19. Accordingly, this court has jurisdiction to adjudicate upon this sentence re-hearing or re-sentencing which is made on the basis of the unconstitutionality of the mandatory sentence.

Alleged Violation 20. The applicant is challenging the mandatory nature of the death sentence in section 296(2) of the Penal Code for denying the court discretion to impose an appropriate sentence. He prays for the death sentence to be set aside and he be given a lenient sentence. He says that he is rehabilitated and has learned new skills which makes him fit for re-integration in society. In addition, he mitted that he is advanced in age and hopes to get a sentence that will give him an opportunity to support his family.

21. In reacting to these missions, the prosecution counsel has conceded to the application.

22. It is worth mentioning that, this proceeding is premised upon inter alia articles 22(1), 23(3), and 165 (3) of the Constitution. Therefore, an application for redress of denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. And, I will deal with them as such.

23. They claimed violation of article 50(2)(p) of the Constitution which provides: -50(2)Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing

24. Sentencing is part of trial. Discretion in sentencing therefore, pertains to fair trial. Mandatory sentences deprive courts of discretion to impose appropriate sentences. Persons who suffer this kind of deprivation may claim violation of the right to appropriate or less severe sentence- a principle embodied in the Constitution including article 50(2)(p) of the Constitution.

25. Section 296(2) of the Penal Code provides: -If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. [Underlining mine and for emphasis]

26. The use of the term shall in Section 296(2) of the Penal Code prescribes a mandatory sentence of death. Therefore, the section, to the extent that it provides for a mandatory sentence of death, takes away the discretion of the court in sentencing, thus, inconsistent with the Constitution.

27. However, the Constitution provided the courts with new tools in construction of existing law with such modifications, exceptions, adaptations, and alterations necessary to bring it in conformity with the Constitution (Section 7 of the Transitional Provisions, Sixth Schedule of the Constitution). There is therefore, no absolute necessity or strict requirement in law to strike down a provision in existing law such as section 296(2) of the Penal Code for being inconsistent with the Constitution unless it is totally irreconcilable with the Constitution. These techniques were specially designed to avoid paralysis and confusion in the application of law which may ensue upon down-right striking out of provisions of existing law, but also giving the legislature time to remove the offending elements aligning it to the Constitution.

28. In this case, I interpret section 296(2) of the Constitution to prescribe death as the maximum sentence- this brings it into conformity with the Constitution.

Purpose of Resentencing 29. The purport of re-sentencing is to provide an effective remedy to an injustice arising from a violation of a right or fundamental freedom as was aptly explained by Majanja J in Michael Kathewa Laichena & Another v Republic (2018) eKLR that:“…by re-sentencing the petitioner, the High Court is merely enforcing and granting relief for what is in effect a violation caused by the imposition of the mandatory death sentence”.

30. I should however, add that the authority of the court in articles 165(3) and 23 of the Constitution is inter alia, to uphold and enforce the Bill of Rights. The authority also formally and actually gives the court power of consistently structuring, developing, and deploying progressive jurisprudence on enforcement of rights and fundamental freedoms across time and space in accordance with the command in article 20(3) of the Constitution, that: -In applying a provision of the Bill of Rights, a court shall—a.develop the law to the extent that it does not give effect to a right or fundamental freedom; andb.adopt the interpretation that most favours the enforcement of a right or fundamental freedom.

Sentence 31. Applying the test, does the sentence herein violate the rights of the applicant?

32. Every person should enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. The court is aware that the President commuted the death sentence to life imprisonment. Although in now famous Kitsao case life sentence was declared unconstitutional, it appears opinion is divided on whether life sentence is unconstitutional. Nevertheless, the court will consider the circumstances of the case and impose an appropriate sentence.

33. The Judiciary Sentencing Policy Guidelines lists the objectives of sentencing on page 15 paragraph 4. 1. Among others; the gravity of the offence, the threat of violence against the victim, and the nature and type of weapon used by the Applicant to inflict harm. What are the relevant circumstances of this case?

34. The respondent mitted that the trial magistrate without any mitigating factors and without putting into consideration that the petitioner did not use excessive force nor did they unnecessarily injure the complainant during the robbery went ahead to pass a death sentence as was prescribed by the law. The violence unleashed on the victim was not sufficiently serious. The mitigating and aggravating factors were not put into consideration and the trial magistrate was tied to the law that prescribed a mandatory death sentence. The respondent thus conceded to the petition on review of the death sentence.

35. The court has also considered other mitigating factors; his age, rehabilitation as well as family needs.

36. Nevertheless, in the circumstances of this case, and the seriousness of the offence, a deterrent sentence is most appropriate.

Conclusions And Orders 37. The death sentence is set aside and the applicant is sentenced to 20 years’ imprisonment. The sentence shall commence from date of conviction.

38. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 20TH DAY OF NOVEMBER, 2023HON. F. GIKONYO M.JUDGEIn the presence of:-Ms. Mwaniki for DPPApplicant.