[2018] KEHC 4906 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL PETITION NO. 1 OF 2017

SIMON NJIRU KIURA...........................................PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS.....RESPONDENT

J U D G M E N T

1. The petitioner in his petition amended on 20/11/2017 institutes his suit under Article 22(1) and 258(1) of the Constitution of Kenya which empowers this court to grant reliefs sought under Article 22, 23 of the Constitution. The petition is founded on Articles 20, 21, 22, 23, 25, 26, 27, 28, 29, 48, 50, 165 and 258 of the Constitution. Other legal foundations cited are Section 329 of the Criminal Procedure Code and Section 296(2) of the Penal Code.

2. The petition seeks the following prayers:-

(a) A Declaration that the death sentence imposed by the trial court is inconsistent with Article 25(b) and 50(2)(p) of the Constitution as well as Section 329 of the Criminal Procedure Code.

(b) A Declaration that the imposition of mandatory death penalty constitutes cruel and inhuman treatment thus inconsistent with Article 25(a) and 29(d) of the Constitution.

(c) A declaration that the Constitutional Rights of the Petitioner have been grossly violated.

(d) An order rendering the petitioner’s case to the High Court for mitigation and determination of proportionate sentence in line with the Constitution.

(e) An Order, in the alternative, for review of the Petitioner’s case in the interest of justice.

(f) An order that death sentence is cruel, inhuman and degrading and thus unconstitutional.

3. The petitioner was convicted in 2003 by Embu Senior Resident Magistrate of the offence of robbery with violence contrary to Section 296(2) of the Penal Code and was sentenced to death. His appeal to the High Court and the Court of Appeal against conviction and sentence were dismissed. The petitioner has now invoked the constitutional jurisdiction of this court seeking redress as to the alleged violation of his fundamental rights.

4. It is contended that the imposition of death sentence on the on the petitioner without taking into account the ambiguity portrayed in the penal code amounts to cruel and inhuman treatment which is in direct violation of Article 25(a) of the Constitution. A convict sentenced to death is said to suffer from the “death row syndrome” which is defined as the lengthy period that a convicted person is made to endure before he faces execution.

5. The petitioner states that in the Kenyan situation, a convict is made to wait for years on end for the day that the sentence is executed as well as being subjected to terrible prison conditions. Since 1987, no death row convict has been executed in Kenya which puts the constitutionality of the sentence into question.

6. The petitioner also states that he was sentenced to death under Section 296(2) of the Penal Code in 2003 for the offence of robbery with violence and has been under death row since then. He contends that the death sentence imposed on him infringes on his inherent human right to life under Article 26(1) of the Constitution. It also violates his right to a fair trial under Article 25(b) and Article 50(2) of the Constitution.

7. It is argued that the petitioner was denied an opportunity to get a lenient sentence based on circumstances surrounding his case. It is the petitioner's contention that had he been allowed to mitigate the petitioner would have received a lenient sentence. Having been on the death row for a period of over 13 years, his fundamental rights against cruel and inhuman treatment under Article 25(a) of the Constitution have been violated. He has suffered psychological torture for the lengthy period that he has awaited execution on the death row.

8. The petitioner filed submissions in support of his arguments and set out the issues as follows:-

(a) Whether the mandatory death sentence is constitutional.

(b) Whether the provisions of Section 296(2) of the Penal Code is unconstitutional.

9. Although the petitioner said he abandoned submissions on the unconstitutionality of the death sentence, he did not withdraw this prayer from the petition.

10. The petitioner argues that the right to a fair trial under Article 50(2) was violated because he was denied of the right to mitigate for a lenient sentence based on the fact that death sentence was mandatory. He contended that a court of law ought to have discretion to consider factors raised in mitigation including the circumstances of the offence.

11. It is mitigated that the petitioner has greatly suffered under the death row syndrome and it is in the interest of justice that he be sentenced to the period of 15 years already served.

12. It is further submitted that Section 296(2) of the Penal Code takes away the discretion of the court in sentencing. It also contravenes Article 50(2) which provides for the rights to fair trial. The provision has the effect of interfering with the constitutional rights of the accused for fair trial among others.

13. The petitioner relies on Section 329 of the Criminal Procedure Code in urging the court to declare Section 296(2) unconstitutional for the reason that its provisions are not compliant with Section 329.

14. Section 329 provides:-

The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.

15. The Supreme Court case of FRANCIS KARIOKO MURUATETU & ANOTHER VS REPUBLIC [2017] eKLRwhich declared the mandatory death sentence unconstitutional.

16. The Court of Appeal case of GODFREY NGOTHO VS REPUBLIC [2010] eKLR which extensively dealt with the constitutionality of death sentence was cited.

17. The petitioner also relied on the case of WILLIAM OKUNGU KITINY VS REPUBLIC [2018] eKLR where the Court of Appeal held that:-

….the sentence of death under Section 296(2) and Section 297(2) of the Penal Code is discretionary maximum punishment. To the extent that Section 296(2) and 297(2) of the penal code provides for mandatory death sentence the Sections are inconsistent with Constitution.

18. The other case relied on was that of DOUGLAS MUTHAURA NTORIBI VS REPUBLIC Misc. Criminal Application No. 3 of 2015 where the High Court cited with approval the case of the Supreme Court decision in FRANCIS KARIOKO MURUATETU (supra). It was held:-

It is my view that the High Court is duly bound to consider cases where litigants have already been sentenced to suffer death. This consideration is not limited to only murder cases but to all capital offences.

The petitioner urges the court to allow the petition or alternatively sentence the petitioner to the period of 15 years that he has already served.

19. During the hearing the respondent conceded to this petition on grounds that the law was established by the Supreme Court in the FRANCIS KARIOKO MURATETU case (supra) whereas it was held that the mandatory death sentence is unconstitutional. The respondent had earlier filed a replying affidavit in which it was deposed that the mandatory death sentence is not unconstitutional. Article 26(3) of the Constitution was cited which provides that a person may be deprived of the right to life to the extent authorized by this Constitution or other written law.

20. The respondent also relied on Section 24 of the Penal Code which provides for punishments which may be imposed by the court and which include death sentence. It was deposed that Section 25(1) of the same code provides that where any person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in a manner authorized by the law.

21. It was further stated that although some international instruments outlaw the death penalty and while the form part of Kenyan law, they cannot be said to override the Kenyan constitution. The respondent however appreciated that the Supreme Court was dealing with a petition of one FRANCIS MURUATETU & 5 OTHERS No. 15 of 2015that challenged the constitutionality of death sentence and which was yet to be determined.

22. By the time this petition was being heard the said Supreme Court petition had been determined which influenced the respondent to concede to the petition.

23. The issues raised in this petition are as follows:-

(a) Whether this court has jurisdiction to determine this petition.

(b) Whether the death sentence imposed to the petitioner under Section 296(2) of the Penal Code is unconstitutional.

(c) Whether the petitioner's case should be remitted to the trial court for re-hearing on sentence.

(d) Who should bear the costs of this petition.

24. The jurisdiction of the high court is donated by Article 165 of the Constitution. Article 165(2)(b) provides that this court has:-

25. Jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened.

26. Article 165(3)(d) provides that this court has:-

Jurisdiction to hear any question respecting the interpretation of this constitution including the question whether any law is inconsistent with or in contravention of this constitution.

27. This petition raises constitutional questions regarding violation, infringement of the petitioner’s constitutional rights. The provisions of Article 165(2) and (3) empower this court to hear and determine the constitutional issues among others raised in this petition.

28. The jurisprudence in death sentence has grown over the years making a milestone in the Supreme Court decision in the FRANCIS KARIOKO MURUATETU & ANOTHER case (supra). It was decided in that that mitigation in sentencing is part of the process of the right to a fair trial under Article 50(2) of the Constitution in offences of murder contrary to Section 203 as read with 204 of the Penal Code and of robber with violence contrary to Section 296(2) of the Penal Code.

29. In the Court of Appeal case of GODFREY NGOTHO MUTISO VS REPUBLIC Criminal Case No. 17 of 2008 it was held by a three judge bench.

We note that while the Constitution itself recognizes the death penalty as being lawful, it does not say anywhere that when a conviction for murder is recorded, on the death sentence shall be imposed. We declare that Section 204 shall, to the extent that it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and and spirit of the constitution, which was we have said makes no such mandatory provision.

30. The holding in this case resulted in courts sentencing the accused persons in offences where death penalty is provided to terms of imprisonment.

31. In the case of REPUBLIC VS JOHN KIMITA MWANIKI Criminal Case No. 116 of 2017, Emukule J. sentenced the accused in a case of murder to thirty (30) years imprisonment on the strength of the MUTISO case.

32. Mutuku J. in REPUBLIC VS STEPHEN WEKESA WASIKE twenty (20) years imprisonment after convicting him of murder.

33. In the case of REPUBLIC VS DICKSON MUNENE & ANOTHER Criminal Case No. 11 of 2009, Warsame J.(as he then was) faulted the MUTISO decision on death sentence and its commutation to life imprisonment by the President.

34. A five (5) judge bench of the Court of Appeal in REPUBLIC VS JOSEPH NJUGUNA MWAURA Criminal Appeal No. 5 of 2008in its judgment delivered in 2013 overruled the MUTISO case. It held that:-

We hold that the decision in GODFREY MUTISO VS REPUBLIC to be per inucriam in so far as it purports to grant discretion in sentencing with regard to capital offences.

35. The Court of Appeal ended up in two conflicting decisions. However, the law on death sentence has not been resolved until in the Supreme Court decision of the FRANCIS MURUATETU case (supra) which I will revisit later.

36. The petitioner alleges that death sentence is a violation of Articles 25(c) and 50(2) of the Constitution. It is imperative to look at the provisions of the said constitutional provisions.

37. Article 25(c) provides:-

that “the right to a fair trial shall not be limited.”

38. The petitioner was convicted and sentenced on 4/02/2003 during the regime of the retired constitution. Section 73 provided for the right to a fair trial which has been replaced more broadly under Article 50(2) of the Constitution which came into force on 28/08/2010.

39. The petitioner therefore had the right to a fair trial protected by the Constitution at the time he was convicted in 2003.

40. Article 50(2) provides that“every person has the right to a fair trial.........”In regard to the right to a fair trial Section 329 of the Criminal Procedure Code was relied on. It provides:-

The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.

41. In view of the above provisions, the petitioner further argued that a convicted person has a aright to be heard before sentence is passed in order to mitigate for a fairer or lenient sentence.

42. Article 27 of the Constitution outlaws discrimination giving every person equal protection and benefit of the law. This right of equality includes the full and equal enjoyment of all rights and fundamental freedoms under the Bill of Rights. The basis of this argument was that convicts for the offence in robbery with violence are not accorded equal protection and benefit of the law unlike convicts in other criminal offences who are always given a chance to mitigate before sentence is passed.

43. It is trite law that the Constitution is the supreme law and takes precedence over statute law. Article 20(1) which was relied on by the petitioner provides:-

(a) The Bill of Rights applies to all law and binds all State organs and all persons.

(b) Every person shall 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.

44. The proponents of death sentence have argued that Article 26(3) permits the mandatory death sentence. The Supreme Court in the MURUATETU (supra) case observed:-

The pronouncement of a death sentence upon conviction is thereof re permissible only if there has been fair trial, which is an underogable right.

45. The right to a fair trial is provided for under Article 50(2) of the Constitution. The Supreme Court in the MURUATETU casespecifically dealt with death sentence in murder cases. However, the issue of constitutionality of death sentence was addressed as a whole in the court's decision in its holding that:-

The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional.

46. I am of the view that the finding of the Supreme Court is equally applicable to death sentence in offences of robbery with violence.

47. I wish to rely on a recent Court of Appeal decision sitting at Kisumu of WILLIAM OKUNGU KITTINY VS REPUBLIC [2019] eKLRwhere it was held:-

From the foregoing, we hold that the findings and holding of the Supreme Court particularly in paragraph 69 applies mutatis mutandis to Section 296(2) and 297(2) of the Penal Code. Thus, the sentence of death under Section 296(2) and 297(2) of the Penal Code is a discretionary maximum punishment. To the extent that Section 296(2) and 297(2) of the Penal Code provides for mandatory death sentence the Sections are inconsistent with Constitution.

48. I reach a conclusion that death sentence under Section 296(2) is “a discretionary maximum punishment”.

49. The issue of the right to a fair trial in respect of death sentence was addressed in the said Supreme Court case paragraph 48 of the judgment that stated:-

Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Article 25 of the Constitution; an absolute right.

50. The Supreme Court further stated in paragraph 47:-

Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in Article 10 of the Universal Declaration of Human Rights, and in the same vein Article 25(c) of the Constitution elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to a fair trial is one of the cornerstones of a just and democratic society, without which the Rule of Law and public faith in the justice system would inevitably collapse.

51. In the case of WOODSON VS THE STATE OF NORTH CAROLINE (WOODSON) [1976] 428 US 280 which was cited by the Supreme Court in the MURATETU case (supra), the court referred to convicts in capital offences in regard to death penalty as follows:-

as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of the death.

52. The mandatory nature of death sentence excludes the discretion of the court in taking into account the facts and circumstances of each particular case.

53. I am bound and I agreed with Supreme Court finding that mitigation is one component of the right to a fair trial and that the law or procedure that denies a convict this right violates Article 50(2) of the Constitution. I am persuaded and I find that the petitioner's right to a fair trial was violated.

54. The Supreme Court did not outlaw the death penalty but declared its “mandatory nature” unconstitutional. The petitioner was sentenced to death under Section 296(2) of the Penal Code in pursuance with the mandatory nature of the provision;“he shall be sentenced to death”.

55. Since 2013 when the petitioner was sentenced to death, he has been waiting on the death row for many years before the sentence was commuted to life imprisonment. The anxiety and the psychological torture that goes with the prolonged segregation on the death row is not only agonizing but inhuman and degrading contrary to Article 25(a) of the Constitution. The petitioner has a right to enjoy the benefits of the Bill of Rights like any other Kenyan citizen except what is done within the Constitution which is superior to all the laws.

56. The Supreme Court affirmed that the death penalty under Section 204 is not inconsistent with the Constitution. The applicability of this finding and holding was explained by the Court of Appeal in the WILLIAM KITTINY case (supra) as follows:-

Consequently, we find that Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides the mandatory death sentence for murder. For avoidance of doubt, this decision does not outlaw the death outlaw the death penalty, which is still applicable as a discretionary maximum punishment.

57. Similarly, it is my considered opinion that Section 296(2) of the Penal Code is not unconstitutional save for its wording on the mandatory death sentence. The Attorney General was directed to move the legislature for the amendment of the provision to exclude its mandatory nature.

58. The Supreme Court gave directions on how the matters affected by the death sentence should be dealt with, that is remitting back the cases to the trial court for re- hearing on sentence. In this case, the Senior Resident Magistrate Court is possessed of the requisite jurisdiction in the offence of robbery with violence contrary to Section 296(2) of the Penal Code.

59. In pursuance with the provisions of Article 163(7) this court is bound by the decision of the Supreme Court in all aspects of the MURUATETU case among others.

60. In view of the foregoing, I hereby allow the petition in the following terms:-

(a) That a declaration is hereby made that the mandatory death sentence imposed on the petitioner under Section 296(2) of the Penal Code is unconstitutional.

(b) That in compliance with the Supreme Court directions, the petitioner's case Embu SPM Criminal Case No. 663 of 2002 be remitted to the Chief Magistrate Embu for rehearing and sentence at the appropriate time.

(c) That each party bears its own costs of this petition.

61. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 25TH OF JULY, 2018.

F. MUCHEMI

JUDGE

In the presence of:-

Andande for Petitioner

Ms. Mati for Respondent