[2022] KEHC 10102 (KLR)

Shamala v Director of Public Prosecutions (Criminal Petition 43 of 2020) [2022] KEHC 10102 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10102 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Petition 43 of 2020

WM Musyoka, J

May 18, 2022

Between

Micah Shamala

Petitioner

and

Director of Public Prosecutions

Respondent

Ruling

1. The matter for me to determine is the petition herein, undated, but filed herein on 7th July 2020, by Micah Shamala. It is supported by an affidavit that he swore on an unknown date. It was filed simultaneously with a Motion, which is also undated.

2. In the petition, he avers that he had been convicted of murder, contrary to section 203, as read with section 204 of the Penal Code, Cap 63, Laws of Kenya, in Kakamega HCCRC No. 10 of 2009, and was sentenced to twenty years imprisonment, which was enhanced on appeal, in Kisumu CoACRA No. 40 of 2013, to death sentence. The death penalty was subsequently commuted to life imprisonment by the President of the Republic of Kenya. He avers that the mandatory death sentence meted out was arbitrary and inhuman, and it denied him a fair trial, contrary to Article 50(4) of the Constitution. He also avers that the framing of the offence of murder was at variance with sections 134 and 137 of theCriminal Procedure Code, Cap 75, Laws of Kenya. He avers that the decision by the Court of Appeal, to enhance the sentence, was unconstitutional and prejudicial to the Constitution. He avers that he is remorseful, and refers to documents attached to his affidavit.

3. In the affidavit in support, he avers that he was serving life imprisonment after the Presidential pardon. He states that his petition was founded on Article 165(3) (b) of the Constitution. He avers that he has no pending appeal, after his appeal in Kisumu CoACRA No. 40 of 2013, which enhanced his sentence was disposed of. He asserts that applications similar to his, in Douglas Muthaura Njombi Meru HC Misc. Appl No. 4 of 2015 and John Ng’ang’a Gacheri Kiambu HCCRA No. 31 of 2016, had accorded to the parties the orders that they had sought in their applications. He further cites Francis Karioko Muruatetu & another vs. Republic [2017] eKLR(Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ). He expresses remorse. He has attached documents to show that he has reformed. There are two letters from the Prions Service, dated 11th June 2020 and 19th June 2020, showing that he was a high ranking member of the Seventh Day Adventists Church and that he had undertaken various Bible and theology studies. He is expressed to have been sufficiently rehabilitated.

4. In the Motion he seeks a fresh hearing for the purposes of re-sentencing.

5. Directions were given on 18th January 2021, for disposal by way of written submissions. It was further directed that a re-sentencing report be prepared and filed. The petitioner did file detailed written submissions. Which I have read through, and noted the arguments made therein. Two letters of recommendation have also been placed on record, by the Kenya Prison Service. The Kakamega County Director of Probation also evaluated the case and filed a report in court.

6. The petition herein is no doubt founded on the decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR(Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), where the Supreme Court decreed that the mandatory death sentence prescribed for the offence of murder by the Penal Code was unconstitutional, and a violation of human rights and dignity. It was stated that the High Court had discretion, when sentencing persons convicted of murder, to consider other sentences.

7. In the instant case, the petitioner had been sentenced to twenty years imprisonment, upon conviction. No doubt, the High Court acted in the spirit of Francis Karioko Muruatetu & another vs. Republic [2017] eKLR(Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), well before that decision was itself made. In its ruling on sentence, dated 31st January 2013, the court stated:“The court notes that the Court of Appeal has held that the death penalty is inhuman and degrading. However, the punishment for murder still remains the death penalty under our laws. Courts have of late imposed prison sentences. Taking into account the mitigation by counsels for the accused and the circumstances of the case, each accused person is hereby sentenced to serve Twenty (20) years imprisonment.”

8. In Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), the court gave guidelines to the High Court with respect to rehearings on sentences, where the mandatory death sentence had been imposed. This is one such case. The petitioner has a right to be reheard. However, I note that the petitioner had been heard on the matter, and mitigation was presented, and a sentence of twenty-year imprisonment had been imposed, which was altered on appeal, to replace it with the mandatory death sentence.

9. I shall, by way of review of the death sentence, accordingly re-impose the sentence that had been pronounced in Kakamega HCCRC No. 10 of 2009 on 31st January 2013, and order that the petitioner shall serve a sentence of twenty-years in prison. The computation of that sentence shall take into account the period that the petitioner might have spent in custody pending the hearing and determination of the criminal case. Thereafter, the petitioner shall be entitled to remission, based on that sentence, in accordance with the law that governs the same. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 18THDAY OF MAY.2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Micah Shamala, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.