RULING
1. The Applicant filed an application dated 20th November 2024 under a Certificate of Urgency seeking leave for the Court to hear his mitigation and to revise his sentence on grounds of leniency, contending that his mitigation was not considered when the mandatory sentence was imposed by the trial court.
2. The Applicant further seeks a review of the sentence and prays that the period of three (3) years spent in remand custody be taken into account as part of the sentence served. He relies on Section 333(2) of the Criminal Procedure Code and urges the Court to consider the period spent in custody in computing the sentence imposed by the trial court.
3. The Applicant further contends that this Court has the requisite jurisdiction to grant the reliefs sought.
Background
4. The Applicant, Audu Moses Wabianga, was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code, Cap 63 Laws of Kenya.
5. The particulars of the charge were that on 8th July 2001 at Lukhokhwe Village in Bungoma District, while armed with rifles, iron bars and pangas, he robbed Michael Wafula Wafubwa of one sewing machine head make Eagle Wheel JA 2-1, a pair of white shoes, and a handbag all valued at Kshs. 8,500/= and, at or immediately before or immediately after the time of such robbery, used physical violence against the said Michael Wafula Wafubwa.
6. The Applicant also faced a second count of being unlawfully present in Kenya contrary to Section 13(2) of the Immigration Act, Cap 172 Laws of Kenya.
7. The particulars of the second charge were that on 9th July 2001 at Lukhokhwe Village in Bungoma District within Western Province, the Applicant was found unlawfully present in Kenya without valid immigration documents.
8. Upon conclusion of the trial, the learned trial magistrate found the Applicant guilty of the offence of robbery with violence and sentenced him to death, being the only sentence then prescribed by law.
9. On the second count, the trial court sentenced the Applicant to pay a fine of Kshs. 3,000/= and, in default, to serve three (3) months imprisonment.
10. The Applicant appealed against both conviction and sentence. Upon hearing the appeal, Hon. Justices F.N. Muchemi and D.A. Onyancha dismissed the appeal and noted that the Applicant had tendered mitigation before the trial court.
11. The Applicant further states that he appealed to the Court of Appeal, but the appeal was dismissed. Subsequently, his death sentence was commuted to life imprisonment through presidential clemency.
12. The Applicant contends that the period spent in remand custody prior to conviction was not taken into account contrary to Section 333(2) of the Criminal Procedure Code, and therefore seeks a review of the sentence.
13. Learned State Counsel, Mr. Minishi, did not oppose the application.
Issues for Determination
14. The only issue for determination is whether the Applicant’s sentence of life imprisonment should be reviewed and reduced.
Analysis and Determination
15. The death sentence imposed upon the Applicant was subsequently commuted to life imprisonment through a Presidential Gazette Notice. Nevertheless, the sentence originally imposed by the court remained a death sentence, which this Court must consider in determining the present application.
16. In Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu I), the Supreme Court held that mandatory sentences deprive courts of discretion to impose appropriate sentences and are therefore inconsistent with constitutional principles.
17. It is now settled that mandatory sentences undermine judicial discretion and may result in arbitrary and disproportionate punishment.
18. The instant application is premised, inter alia, on Article 50(2)(p) of the Constitution, which guarantees every accused person the right to the benefit of the least severe punishment where the prescribed sentence changes between the date of commission of the offence and sentencing.
19. Section 296(2) of the Penal Code provides that where an offender is armed with a dangerous or offensive weapon, is in company with one or more persons, or uses violence immediately before, during or after the robbery, such offender shall be sentenced to death.
20. In my view, resentencing provides an effective remedy where an accused person was subjected to a mandatory sentence that denied the court discretion to consider mitigating circumstances. This position was similarly adopted in Michael Kathewa Laichena & Another v Republic [2018] eKLR, where the Court held that resentencing serves to remedy the constitutional violation occasioned by the imposition of a mandatory death sentence.
21. The Court of Appeal in Thomas Mwambu Wenyi v Republic [2017] eKLR emphasized that sentencing is a discretionary judicial function intended to achieve justice through proportionate punishment. Courts must consider the gravity of the offence, the manner in which it was committed, the offender’s circumstances, and all relevant mitigating and aggravating factors.
22. In the present case, the Applicant was sentenced to death solely because it was the mandatory sentence prescribed under Section 296(2) of the Penal Code. The mandatory nature of the sentence denied the trial court the opportunity to exercise discretion in determining an appropriate sentence.
23. I therefore find that this Court has jurisdiction to reconsider the sentence imposed upon the Applicant.
24. In Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others [2021] eKLR (Muruatetu II), the Supreme Court clarified that the principles in Muruatetu I directly applied to murder cases under Sections 203 and 204 of the Penal Code. However, the Court also observed that constitutional challenges relating to mandatory death sentences for offences such as robbery with violence ought to be properly canvassed before the High Court and, if necessary, escalated to the Court of Appeal.
25. The Supreme Court further stated that all offenders subjected to mandatory death sentences and who desired to be heard on sentence were entitled to resentencing hearings.
26. This Court is persuaded that persons convicted of capital offences are entitled to equal protection and equal benefit of the law under Article 27 of the Constitution. There can be no justification for denying one category of capital offenders the right to mitigation while extending the same right to another.
27. The Court is further guided by emerging jurisprudence holding that indeterminate life sentences may, in certain circumstances, offend the constitutional principles of dignity, equality, and proportionality.
28. In Julius Kitsao Manyeso v Republic (Malindi Criminal Appeal No. 12 of 2021), the Court of Appeal observed that mandatory indeterminate life sentences deny offenders the opportunity for meaningful mitigation and rehabilitation, contrary to Articles 27 and 28 of the Constitution.
29. The Court also considered the persuasive authority of Vinter & Others v The United Kingdom, where it was held that a life sentence without the possibility of review or release may amount to degrading and inhuman punishment.
30. Sentencing must therefore remain proportionate, individualized, and aimed at achieving the objectives of punishment, deterrence, rehabilitation, restorative justice, and community protection.
31. I have considered the circumstances of this case, the mitigation tendered, the period already spent in custody, and the nature of the offence committed. I note that no life was lost and no grievous injuries were sustained. The property involved was valued at Kshs. 8,500/=.
32. I have further considered that the Applicant has been in custody for a considerable period and that continued incarceration would not serve any useful penal purpose. The Applicant was relatively young at the time of conviction and has now spent approximately seventeen (17) years in custody.
33. The Court also notes that the Applicant’s conviction was substantially based on the doctrine of recent possession and that the violence involved did not result in fatal or grievous injuries.
34. Having considered the totality of the circumstances, I am satisfied that this is a proper case for this Court to exercise its discretion in favour of the Applicant.
Determination
35. Consequently, I make the following orders:
a. The sentence of life imprisonment, previously commuted from the death sentence, is hereby set aside and substituted with the period already served.
b. The application for resentencing is hereby allowed. The Applicant shall forthwith be released from custody unless otherwise lawfully held.
c. Upon release, the Applicant shall be repatriated to Uganda in accordance with the applicable immigration laws and procedures.
1. The Applicant filed an application dated 20th November 2024 under a Certificate of Urgency seeking leave for the Court to hear his mitigation and to revise his sentence on grounds of leniency, contending that his mitigation was not considered when the mandatory sentence was imposed by the trial court.
2. The Applicant further seeks a review of the sentence and prays that the period of three (3) years spent in remand custody be taken into account as part of the sentence served. He relies on Section 333(2) of the Criminal Procedure Code and urges the Court to consider the period spent in custody in computing the sentence imposed by the trial court.
3. The Applicant further contends that this Court has the requisite jurisdiction to grant the reliefs sought.
Background
4. The Applicant, Audu Moses Wabianga, was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code, Cap 63 Laws of Kenya.
5. The particulars of the charge were that on 8th July 2001 at Lukhokhwe Village in Bungoma District, while armed with rifles, iron bars and pangas, he robbed Michael Wafula Wafubwa of one sewing machine head make Eagle Wheel JA 2-1, a pair of white shoes, and a handbag all valued at Kshs. 8,500/= and, at or immediately before or immediately after the time of such robbery, used physical violence against the said Michael Wafula Wafubwa.
6. The Applicant also faced a second count of being unlawfully present in Kenya contrary to Section 13(2) of the Immigration Act, Cap 172 Laws of Kenya.
7. The particulars of the second charge were that on 9th July 2001 at Lukhokhwe Village in Bungoma District within Western Province, the Applicant was found unlawfully present in Kenya without valid immigration documents.
8. Upon conclusion of the trial, the learned trial magistrate found the Applicant guilty of the offence of robbery with violence and sentenced him to death, being the only sentence then prescribed by law.
9. On the second count, the trial court sentenced the Applicant to pay a fine of Kshs. 3,000/= and, in default, to serve three (3) months imprisonment.
10. The Applicant appealed against both conviction and sentence. Upon hearing the appeal, Hon. Justices F.N. Muchemi and D.A. Onyancha dismissed the appeal and noted that the Applicant had tendered mitigation before the trial court.
11. The Applicant further states that he appealed to the Court of Appeal, but the appeal was dismissed. Subsequently, his death sentence was commuted to life imprisonment through presidential clemency.
12. The Applicant contends that the period spent in remand custody prior to conviction was not taken into account contrary to Section 333(2) of the Criminal Procedure Code, and therefore seeks a review of the sentence.
13. Learned State Counsel, Mr. Minishi, did not oppose the application.
Issues for Determination
14. The only issue for determination is whether the Applicant’s sentence of life imprisonment should be reviewed and reduced.
Analysis and Determination
15. The death sentence imposed upon the Applicant was subsequently commuted to life imprisonment through a Presidential Gazette Notice. Nevertheless, the sentence originally imposed by the court remained a death sentence, which this Court must consider in determining the present application.
16. In Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu I), the Supreme Court held that mandatory sentences deprive courts of discretion to impose appropriate sentences and are therefore inconsistent with constitutional principles.
17. It is now settled that mandatory sentences undermine judicial discretion and may result in arbitrary and disproportionate punishment.
18. The instant application is premised, inter alia, on Article 50(2)(p) of the Constitution, which guarantees every accused person the right to the benefit of the least severe punishment where the prescribed sentence changes between the date of commission of the offence and sentencing.
19. Section 296(2) of the Penal Code provides that where an offender is armed with a dangerous or offensive weapon, is in company with one or more persons, or uses violence immediately before, during or after the robbery, such offender shall be sentenced to death.
20. In my view, resentencing provides an effective remedy where an accused person was subjected to a mandatory sentence that denied the court discretion to consider mitigating circumstances. This position was similarly adopted in Michael Kathewa Laichena & Another v Republic [2018] eKLR, where the Court held that resentencing serves to remedy the constitutional violation occasioned by the imposition of a mandatory death sentence.
21. The Court of Appeal in Thomas Mwambu Wenyi v Republic [2017] eKLR emphasized that sentencing is a discretionary judicial function intended to achieve justice through proportionate punishment. Courts must consider the gravity of the offence, the manner in which it was committed, the offender’s circumstances, and all relevant mitigating and aggravating factors.
22. In the present case, the Applicant was sentenced to death solely because it was the mandatory sentence prescribed under Section 296(2) of the Penal Code. The mandatory nature of the sentence denied the trial court the opportunity to exercise discretion in determining an appropriate sentence.
23. I therefore find that this Court has jurisdiction to reconsider the sentence imposed upon the Applicant.
24. In Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others [2021] eKLR (Muruatetu II), the Supreme Court clarified that the principles in Muruatetu I directly applied to murder cases under Sections 203 and 204 of the Penal Code. However, the Court also observed that constitutional challenges relating to mandatory death sentences for offences such as robbery with violence ought to be properly canvassed before the High Court and, if necessary, escalated to the Court of Appeal.
25. The Supreme Court further stated that all offenders subjected to mandatory death sentences and who desired to be heard on sentence were entitled to resentencing hearings.
26. This Court is persuaded that persons convicted of capital offences are entitled to equal protection and equal benefit of the law under Article 27 of the Constitution. There can be no justification for denying one category of capital offenders the right to mitigation while extending the same right to another.
27. The Court is further guided by emerging jurisprudence holding that indeterminate life sentences may, in certain circumstances, offend the constitutional principles of dignity, equality, and proportionality.
28. In Julius Kitsao Manyeso v Republic (Malindi Criminal Appeal No. 12 of 2021), the Court of Appeal observed that mandatory indeterminate life sentences deny offenders the opportunity for meaningful mitigation and rehabilitation, contrary to Articles 27 and 28 of the Constitution.
29. The Court also considered the persuasive authority of Vinter & Others v The United Kingdom, where it was held that a life sentence without the possibility of review or release may amount to degrading and inhuman punishment.
30. Sentencing must therefore remain proportionate, individualized, and aimed at achieving the objectives of punishment, deterrence, rehabilitation, restorative justice, and community protection.
31. I have considered the circumstances of this case, the mitigation tendered, the period already spent in custody, and the nature of the offence committed. I note that no life was lost and no grievous injuries were sustained. The property involved was valued at Kshs. 8,500/=.
32. I have further considered that the Applicant has been in custody for a considerable period and that continued incarceration would not serve any useful penal purpose. The Applicant was relatively young at the time of conviction and has now spent approximately seventeen (17) years in custody.
33. The Court also notes that the Applicant’s conviction was substantially based on the doctrine of recent possession and that the violence involved did not result in fatal or grievous injuries.
34. Having considered the totality of the circumstances, I am satisfied that this is a proper case for this Court to exercise its discretion in favour of the Applicant.
Determination
35. Consequently, I make the following orders:
a. The sentence of life imprisonment, previously commuted from the death sentence, is hereby set aside and substituted with the period already served.
b. The application for resentencing is hereby allowed. The Applicant shall forthwith be released from custody unless otherwise lawfully held.
c. Upon release, the Applicant shall be repatriated to Uganda in accordance with the applicable immigration laws and procedures.