[2021] KEHC 4282 (KLR)
The court found that, following the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, the mandatory death sentence for murder is unconstitutional and courts have discretion to impose alternative sentences. The applicant had already mitigated at trial, was remorseful, had a...
Source-derived case information.
- Citation
- [2021] KEHC 4282 (KLR)
- Parties
- Applicant: Zablon Shikunzi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 23 of 2015
- Procedural Posture
- Criminal Miscellaneous Application / Sentence Review After Conviction and Appeal
- Outcome
- Death sentence set aside and substituted with thirty years imprisonment from 13th April 2010.
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Death Sentence, Sentence Review, Murder Conviction, Constitutional Rights, Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zablon Shikunzi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Sentence Review After Conviction and Appeal
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional in light of recent Supreme Court jurisprudence.
- 2 Whether the applicant is entitled to a review of sentence following the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR.
- 3 Whether the applicant's mitigation and time served in custody warrant a reduction of sentence.
Ratio Decidendi
The court found that, following the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, the mandatory death sentence for murder is unconstitutional and courts have discretion to impose alternative sentences. The applicant had already mitigated at trial, was remorseful, had a terminal illness, and had served eleven years in custody. The court considered the circumstances of the offence, which was gruesome and premeditated, but determined that the death sentence should be set aside and substituted with a term of imprisonment for thirty years, effective from the original sentencing date. The court declined to address other issues raised by the applicant as...
Court Disposition
Death sentence set aside and substituted with thirty years imprisonment from 13th April 2010.
Orders
- The death sentence imposed on the applicant is set aside.
- The applicant is sentenced to imprisonment for thirty (30) years, effective from 13th April 2010.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL MISCELLANEOUS APPLICATION NO. 23 OF 2015
ZABLON SHIKUNZI.........................................................................PETITIONER
VERSUS
REPUBLIC.......................................................................................RESPONDENT
RULING
1. The applicant herein was convicted in Kakamega HCCRC No. 7 of 2005, of murder, contrary to section 203, as read with section 204, of the Penal Code, Cap 63, Laws of Kenya, and was sentenced to death. He filed an appeal at the Court of Appeal, being Kisumu CACRA No. 371 of 2012, and the conviction was upheld and sentence confirmed in a judgment delivered on 20th December 2013.
2. The miscellaneous application raises a number issues relating to fair trial, human and constitutional rights abrogations in the course of the trial. The matter went on appeal, and the conviction was affirmed. If the applicant was aggrieved by the decision of the Court of Appeal, he ought to have tried his luck at the Supreme Court. The issues he raises now ought to have been raised on appeal. The only issue that I can take into account is the death penalty that was imposed.
3. There are recent developments in the Kenyan jurisprudence with regard to the mandatory sentence with respect to murder, heralded by the decision of the Supreme Court in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ, Mwilu DCJ, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA). It is on account of that development alone that I can consider review of the sentence that was imposed, the death penalty. In Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ, Mwilu DCJ, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA), the same was pronounced to be inhuman and an aberration. The Supreme Court opined that where appropriate the trial court could consider alternative sentences.
4. I note that upon conviction, the applicant mitigated, through counsel. He was said to be remorseful, and had a medical condition, a terminal illness, that was not disclosed. I have noted too the circumstances of the commission of the offence. The murder was committed in the most gruesome manner. The trial court found and held that it had been planned, and it would appear that the intent was to kill more people that night. The applicant was convicted and sentenced on 13th April 2010. He has so far been in prison custody for eleven (11) years.
5. I shall, and hereby, accordingly, following FrancisKarioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ, Mwilu DCJ, Ojwang, Wanjala, Ndung’u and Lenaola SCJJA), set aside the death sentence, and substitute it with a sentence of imprisonment for thirty (30) years, to last from his sentencing on 13th April 2010. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 26TH DAY OF AUGUST, 2021
W MUSYOKA
JUDGE