[2022] KEHC 12168 (KLR)

Siatikho v Republic (Miscellaneous Criminal Application 82 of 2020) [2022] KEHC 12168 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12168 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Application 82 of 2020

JM Ngugi, J

June 9, 2022

Between

Elijah Joel Siatikho

Applicant

and

Republic

Respondent

Judgment

1. The applicant and Charles Opel were convicted of the offence of robbery with violence and sentenced to death by the magistrates court in Nakuru Criminal Case no 1563 of 2005. The applicant and his co-accused appealed both to this court and the Court of Appeal. In both instances, the court affirmed the conviction and death sentence.

2. Sometime in 2018, Charles Opel made an application for resentencing based on the decision of the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKRL. In my ruling of June 25, 2020, I allowed the application and substituted the death sentence with a prison sentence of 24 years, to be computed from June 10/06/2005 when he was first been arraigned in court.

3. The applicant in this case brought a similar application seeking that his sentence be reviewed based on the finding in Francis Muruatetu. The applicant also sought further orders as follows:a.That the hon court be pleased to award me a lenient definite sentence (article 50(2)(p)b.That the hon court be pleased to invoke the provisions of section 333(2) i.e. the period spent in remand be factored in the sentence to be awarded.

4. The application came up for hearing on July 05, 2021. The gist of the applicant’s submissions was that he had spent 16 years in prison and was now a reformed man. The state did not oppose the application. Instead, it submitted that it had considered the mitigating circumstances and aggravating factors and was of the view that the Applicant had been sufficiently rehabilitated.

5. Having heard both sides, I set down the matter for ruling on July 08, 2021. While the matter was pending ruling, the Supreme Court issued directions in the Muruatetu Case. The directions issued on July 06, 2022 were to the effect that the Muruatetu was only applicable to sentences of murder. Direction 1 stated thus:i.The decision of Muruatetu and these guidelines apply only in respect to sentence of murder under sections 203 and 204 of the Penal Code.This direction meant that courts cease applying the Francis Muruatetu decision as a basis for re-sentencing applications by persons convicted of robbery with violence and other offences – including those mandatorily sentenced to death as Muruatetu had been.

6. I then directed the parties to address the court on whether the guidelines issued after the hearing of the application but pending the ruling of the court applied to the instant case.

7. The applicant’s submissions address his circumstances at the time of commission of the crime, his current circumstances, and the sentence. On the first part, the applicant says that he takes full responsibility of the offence he committed. He contends that the court should consider the circumstances of the crime being that no violence was meted on the complainants and that no life was lost. The applicant also urges the court to consider that he was aged 43 at the time with a young family and that he had no previous criminal record.

8. On the second aspect, the applicant relies on the case of Francis Opondo v Republic [2017] eKLR and contends that the imposition of a sentence should take into consideration the opportunity for rehabilitation under article 10(3) of the International Covenant on Civil and Political Rights. He also cites the case of Douglas Muthaura Ntoribi v Republic [2014] eKLR

9. The applicant submits that while in custody, he has undergone rehabilitation programs which have transformed him, and he is ready to be integrated back into the society. The applicant has listed the various rehabilitation programs he has undertaken including being a volunteer teacher, obtaining a paralegal certificate, a certificate in soap making and theological certificates.

10. On the issue of the sentence, the applicant relies on article 50 (2) (p) of the Constitution and cites the cases of Francis Opondo v Republic [2017] eKLR and Daniel Gichimu & Another v Republic. He also prays that in case the Court considers a custodial sentence, that the time spent in remand be regarded.

11. Lastly the applicant urges that the court regards the criteria developed in Martin Bahati & Another v Rep [2018] eKLR, George Munyinyi Kihuyu v Republic [2018] eKLR, Michael Kathewa Laichena & Ano v A G [2018] eKLR, John Kathia M'Itobi v Rep [2018] eKLR, Joseph Mwangi Ngige&Ano v Rep [2018] eKLR, Lawrence Nkonge Mwiandi Misc Cr App No 72 of 2018 Nakuru (UR), Samson Njuguna Njoroge v Republic H C Cr App no 150 of 2016 (UR) and John Kirema Kaibi v Republic [2018] eKLR.

12. The state’s submissions are dated March 15, 2022. The state’s position is that this court is bound by the guidelines issued by the Supreme Court from the date it was pronounced, and this court therefore has no jurisdiction to pronounce itself on the application since it relies on the Muruatetu decision.

13. The state also submits that the despite there being an expectation for resentencing based on the Muruatetu decision, the expectation itself is insufficient unless it is a legitimate expectation. It relies on a passage from HWR Wade and CF Forsyth on Administrative LawPage 449-450 to the effect that an expectation which requires a decision maker to make an unlawful decision cannot be a legitimate expectation.

14. The state therefore submits that this court cannot apply a doctrine that has been deemed by the Supreme Court to be a misrepresentation and misapplication of the law and no legitimate expectation can arise from it.

15. The state argues further that the court has not declared sections of the law providing for maximum and minimum sentences in other offences to be inconsistent with the Constitution and the sentence meted out remains to be within the confines of the law. Finally, it submits that the death sentence is not affected by the provisions of section 333(2) of the Criminal Procedure Code.

16. The issue that presents itself for determination is therefore, whether the guidelines issued by the Supreme Court after the hearing of the application but pending ruling are applicable to the applicant’s case.

17. The generally accepted legal principle is that the law cannot be applied retrospectively. The Supreme Court in Republic v Karisa Chengo & 2 others [2017] eKLR addressed the applicability of its decision on cases already decided in the courts below. The conclusion in that case was that whether to apply a law or judicial decision retrospectively or prospectively was to be determined on a case-to-case basis; the determining factors being the impact such application would have on the administration of justice and likelihood of depriving individuals of their lawfully acquired rights.

18. Unlike in the Karisa Chengo case, no direction has been given in the Muruatetu case on the fate of resentencing proceedings for offences other than murder already conducted by courts below or those pending in court below. However, in applying the Karisa Chengo reasoning, a retrospective effect of reopening resentencing proceedings for offences other than murder would have the effect of reviving all resentencing proceedings based on Muruatetu.

19. In taking the “case-to-case basis approach” espoused in Karisa Chengo, the instant case presents four unique circumstances. First, the constitutionality of the mandatory death sentence imposed for the offence of robbery with violence is yet to be challenged and/ or litigated in a constitutional court. Secondly, the directions excluding other offences from the benefits of the Muruatetu doctrine were made while the applicant’s case was pending ruling. At the time the state did not oppose the application for resentencing. Thirdly, the rarity of a later judicial decision or a decision by a higher court taking away some benefit from an applicant as opposed to conferring a benefit. The fourth unique situation is that the applicant’s co-accused has already benefited from a similar application. This, therefore, raises the spectre of discrimination against the applicant: his co-accused’s case was heard first only by virtue of the fact that the co-accused was incarcerated in Nakuru Main Prison and his application reached the court first while the applicant was incarcerated at Naivasha Maximum Prison and his application arrived a little later.

20. In view of the above unique circumstances of this case, I am persuaded by the reasoning in John Sila Mutua v Director of Public Prosecution[2022] eKLR that the court ought to apply the same treatment to co-accused persons, unless there are compelling reasons for individual treatment, as this would offend the provisions of article 27 of the Constitution. I find no compelling reasons in the present case. I will, therefore, proceed to determine the matter as I would have but for the Muruatetu Guidelines which were issued while the ruling was pending. In doing so, I have also considered international best practices that a convicted person is entitled to the lower of punishments legally available. At time the court heard his application, the legal position obtaining was that the applicant was entitled to re-sentencing. He should benefit from that legal position because the hearing of his application had been completed by the time the Muruatetu Guidelines were issued by the Supreme Court.

21. I took into consideration the aggravating and extenuating circumstances of the case in my ruling of June 25, 2020 with respect to the applicant’s co-accused person, Charles Opel. The factors are largely the same in the present case.

22. From the foregoing, I hereby make the following orders:I.The death sentence imposed on the Applicant is hereby substituted with a custodial sentence of 24 years imprisonment.II.The sentence shall run from June 10, 2005 when the applicant was first arraigned in court.

23. Orders Accordingly.

DATED AND DELIVERED AT NAKURU THIS 9TH DAY OF JUNE 2022. ...............................................JOEL NGUGIJUDGE