[2023] KEHC 26865 (KLR)

Yoro v Republic (Miscellaneous Criminal Application 151 of 2018) [2023] KEHC 26865 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26865 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Application 151 of 2018

HM Nyaga, J

December 14, 2023

Between

James Ethogan Lokinyei Yoro

Applicant

and

Republic

Respondent

Ruling

1. The Applicant James Ethogan Lokinyei Yoro through undated petition filed on 19th June 2018 stated as follows;i.That he was initially charged, convicted and sentenced to death on 27th April, 1998 at Nakuru Law Court by Hon. H.K Bomet (PM) for the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Criminal Case No.935 of 1997. ii.That upon conviction, he filed an Appeal in Nakuru High Court and later in the year 2002 he made a Miscellaneous Application to the same High Court being Misc. Application No. 91 of 2002 but to date the same is pending hearing and no appeal number was issued.iii.That it is therefore 20 years down the line since he lodged his appeal and there is no response from the High Court despite writing several reminders seeking to be furnished with true copies of the court proceedings thus his rights under Article 50(2) (e) of the Constitution has been violated.iv.That this Honourable Court be pleased to consider that his appeal has high chances of success.v.That the Honourable Court be pleased to note that he has been in prison for the last twenty years up to now without being arraigned before court for hearing of his appeal despite lodging the same within the stipulated period.

2. When the matter was placed before Justice Joel Ngugi (as he then was) he called for the Lower Court records and Misc. No. 91 of 2002 to be availed through the Deputy Registrar of the High Court and set this matter severally for mention to confirm availability of the said records but the exercise was fruitless.

3. Subsequently on 25th April, 2023 the Applicant told court that his application is for resentencing. I ordered the in charge of Criminal Registry to liaise with the Archives to trace the Lower court file. Vide a letter dated 19th June, 2023, the in charge of the High Court Criminal Registry one Ruth Moitui stated that lower court file could not be traced and that the Appellant did not file any appeal in the High Court. She confirmed that the Applicant had filed a Misc. Application Number 91 of 2002 and attached the file.

4. I have perused that file and I note the court on 20th November, 2018 closed the above matter on grounds that it had been overtaken by events.

5. On 25th July, 2023, I issued further orders to the ODPP to trace their records from Nakuru Police Station and prisons to also look for the Applicant’s conviction or committal order.

6. The ODPP was unable to trace their records from the said Police station. However, the committal orders from the prison were retrieved.

7. The officer in charge of Nakuru Main Prison one Samuel K. Nyutu (SSP) vide a letter dated 27th October, 2009 confirmed that the Applicant was in their custody serving a sentence of life imprisonment.

8. A subsequent letter dated 12th October, 2023 by the in charge of the Nakuru Main Prison one George Odera(SSP) addressed to the Deputy Registrar of this court confirms that the Applicant was convicted for the offence of Robbery with violence contrary to Section 296(2) and sentenced to suffer death by the Nakuru Chief Magistrate Court on 27th April,1998. He also stated that the said death sentence was commuted to life imprisonment by the then president of Kenya on 3rd August, 2009.

9. The Applicant is seeking for resentencing. Ideally, the court that heard the witnesses would be the most ideal to handle an applicant of this nature, but with the regular transfers of Judges and Judicial Officers, that is not possible. It is thus left to the current judges and magistrates to place themselves in the shoes of the trial court.

10. Unfortunately, the lower court records have never been traced. That may explain why the applicant’s application to have his appeal admitted out of time, filed in 2002, had not been determined by the time the order to close Misc. Application No. 91 of 2002 was made on 20/11/2018. It is thus not possible to tell the circumstances under which the offence was committed, to enable the court arrive at an appropriate sentence.

11. It may be argued that with the lower court record missing then the accused should be left to suffer his fate. That is an enticing argument, but it does not do justice to the applicant. So many people in his circumstances are benefitting from the fruits of our Constitution. He is entitled to equal treatment before the law.

12. Having stated the above, I will now go to the matter before me.

13. In his submissions, the Applicant urged this court to find that he is equal before the law and should therefore enjoy full and equal rights and fundamental freedoms as enunciated under Articles 27(1) and (2) of the Constitution, 2010.

14. He contended that for the period he has been in custody he has undertaken numerous rehabilitation programmes.

15. He prayed that the sentence of life imprisonment meted against him be substituted with a definite sentence. In buttressing his submissions he relied on the case of Douglas Muthaura Ntoribi vs Republic [2018] eKLR where the court held that-“A good and working prison system should be able to reform convicts. There is no legal research which leads to the conclusion that capital offenders cannot be reformed”,

16. The Applicant also urged this court to take into account the period he has spent in remand custody.

17. The Respondent on their part left the matter for the determination of the court.

Analysis & Determination 18. The only issue that arises for determination is whether the Applicant’s plea for resentencing is merited.

19. There is settled law that mandatory sentences are unconstitutional. The constitutional test was provided by the Supreme Court in the case of Francis Karioko Muruatetu & Another vs Republic (supra). The court declared that the mandatory sentence for murder under Section 204 of the Penal Code was unconstitutional on grounds that it deprives courts of the inherent discretion to impose a sentence other than the death sentence in an appropriate case.

20. Subsequently, the Court of Appeal in William Okungu Kittiny vs Republic (2018) eKLR applied the Muruatetu case mutandis mutatis to the mandatory sentence for robbery with violence under the provisions of section 296 (2) of the Penal Code and declared the said section to be unconstitutional on the same reasons stated by the Supreme Court in the Muruatetu case. As follows:“...The appellant was sentenced to death for robbery with violence under Section 296 (2). The punishment provided for murder under Section 203 as read with Section 204 and for robbery with violence and attempted robbery with violence under Section 296 (2) and 297 (2) is death. By Article 27(1) of the Constitution, every person has inter alia, the right to equal protection and equal benefit of the law. Although the Muruatetu's case specifically dealt with the death sentence for murder, the decision broadly considered the constitutionality of the death sentence in general...From the foregoing, we hold that the findings and holding of the Supreme Court Particularly Paragraph 69 applies mutatis mutandis to Section 296 (2) and 297 (2) of the Penal Code. Thus the sentence ... is a discretionary ...”

21. In the premises, a court can in an appropriate case, impose a sentence other than the death sentence in a case of robbery with violence.

22. The Supreme Court in the Francis Karioko Muruatetu case (supra) set out the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:a.age of the offender;b.being a first offender;c.whether the offender pleaded guilty;d.character and record of the offender;e.commission of the offence in response to gender-based violence;f.remorsefulness of the offender;g.the possibility of reform and social re-adaptation of the offender;h.any other factor that the Court considers relevant.We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process. This notwithstanding, we are obligated to point out here that paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines states that:Guideline JudgmentsWhere there are guideline judgments, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bound by it. It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defence counsel to inform the court of existing guideline judgments on an issue before it.”

23. In Nicholas Mukila Ndetei vs Republic (2019) eKLR, Odunga J. considered what the court has to consider in a re-sentencing hearing and held that: -“In my view, fairness to the accused where a sentence re-hearing is considered appropriate would require a consideration of the circumstances prior to the commission of the offence, at the time of the trial and subsequent to conviction. The conduct of the accused during the three stages may therefore be a factor to be considered in determining the appropriate sentence. The need to protect the society clearly requires the court to consider the impact of the incarceration of the offender whether beneficial to him and the society or not hence the necessity for considering a pre-sentencing report.”

24. I have considered the above stated principles of sentencing. The Applicant was charged with robbery with violence contrary to section 296(2) of the Penal Code. Said Section is prescribed as follows:“296(2. ) 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”

25. From the foregoing, it is indeed correct to state that by prescribing mandatory sentences, the Penal Code takes away a court’s discretion to impose a sentence it considers appropriate in any given circumstances.

26. The Applicant herein was sentenced to mandatory sentence of death as provided in the above section but the same was later commuted to life imprisonment on 3rd August, 2009.

27. It is unfortunate that the lower court records were not retrieved to enable this court ascertain the circumstances that led to the offence , whether the Applicant was a repeat offender, whether there were any aggravating factors and the first date the Applicant was arraigned in court. That mistake however is on part of the court and the same should not be visited upon the Applicant. There is nothing to suggest that the applicant had any role to play in the matter regarding the missing file. The record shows that he was actually pursuing his application to have appeal admitted out of time,16 years after he filed it. The delay in determination of that application cannot be justified at all. The court needs to remedy the situation, and that is by proceeding with the resentencing application, which I have done so.

28. The Applicant stated that he had undertaken rehabilitative programmes while in prison however he did not attach any documentary evidence in support of his case.

29. Be that as it may, I have considered the period the Applicant has been in custody which is about 25 years now. I believe during this period the Applicant has somewhat atoned for his sins.

30. Therefore, I proceed to order that the death sentence imposed on 27th April, 1998 and later commuted to life imprisonment on 3rd August 2009 is hereby set aside and resentence the applicant to 25 years imprisonment. The sentence will run from the date the applicant was convicted, since there is no clarity as to when he was remanded in lawful custody.

31. Having served his sentence, the applicant is now set at liberty unless lawfully held.

32. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 14TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsuguMurunga for stateApplicant present