[2021] KEHC 8438 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and that sentencing discretion must be exercised. The petitioner was remorseful, a first offender, and the offence was not premeditated. However, the gravity of the crime required a...
Source-derived case information.
- Citation
- [2021] KEHC 8438 (KLR)
- Parties
- Appellant: Safari Kazungu Katoi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 72 of 2019
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- Death sentence set aside; petitioner resentenced to 32 years' imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Murder Sentencing, Resentencing After Muruatetu, Mandatory Death Penalty, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safari Kazungu Katoi
Appellant
Republic
Respondent
Procedural Posture
Resentencing Application / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and mitigation.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional and that sentencing discretion must be exercised. The petitioner was remorseful, a first offender, and the offence was not premeditated. However, the gravity of the crime required a custodial sentence to serve justice and deter similar offences. After considering all mitigating factors, the court determined that a sentence of 32 years' imprisonment from the date of arrest was appropriate, setting aside the death sentence previously imposed.
Court Disposition
Death sentence set aside; petitioner resentenced to 32 years' imprisonment from date of arrest.
Orders
- The death sentence imposed upon the petitioner is set aside.
- The petitioner is sentenced to 32 years' imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
PETITION NO. 72 OF 2019
SAFARI KAZUNGU KATOI........................PETITIONER
VERSUS
REPUBLIC...................................................RESPONDENT
JUDGMENT ON RESENTENCING
1. H. A. Omondi, J sitting in the High Court of Kenya at Malindi tried and convicted Safari Kazungu Katoi, hereinafter “the appellant”, on an information charging him with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 21/8/2009 at Katama Village, Chakama Location, Malindi District of the Coast Province, the Appellant murdered Loise Charo, hereinafter “the deceased”. The Appellant was, upon conviction, sentenced to death.
2. The Petitioner appealed to the Court of Appeal vide Mombasa Criminal Appeal No.40 of 2011(R) Safari Kazungu Katoi v Republic.
3. The said appeal was dismissed, and the conviction and sentence confirmed.
4. The Petitioner is now before this Court pursuant to the Supreme Court decision in Francis Karioko Karioko Muruatetu & Another v Republic [2017] eKLR in which the apex court stated that the mandatory nature of the death sentence is unconstitutional.
5. Both parties in this matter agree that this Court has the jurisdiction to resentence the Petitioner.
6. The Petitioner was convicted of the murder of his wife, the mother to his only child. The Petitioner submitted that his child has no parent now and that he should be released to go and take care of his child. The Petitioner submitted that he was very remorseful of his action, and that it took place at the spur of the moment. The Petitioner also states that he suffers from Tuberculosis (T.B) which he acquired in prison.
7. The Petitioner has done several courses in prison, is a first offender, and prays to be released to go and take care of his child.
8. On their part, M/S Wanjohi learned counsel for the State submitted that the crime committed by the Petitioner was grave and should be punished by a jail term of 35 years.
9. I have carefully considered the submissions by the Petitioner and the Respondent. This Court appreciates the fact that the Petitioner is remorseful for the crime he committed. That notwithstanding, appropriate sentence must be given to secure the society from any such crimes. Any sentence must also take the interest of the victim. In this case the victim is not there. It is this court which must give justice to the victim.
10. I have considered all mitigating circumstances given by the Petitioner, and that the murder was not premeditated. This Court must send out a clear warning to would be murder offenders of the consequences of their action. I am satisfied that the Petitioner should be jailed for a term of 32 years from date of arrest.
11. I therefore hereby set aside the death sentence imposed upon the Petitioner. Instead thereof, I jail the Petitioner to serve a jail term of 32 years from the date of arrest.
Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 18th day of March, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Reams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant