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JudgmentBRIAN MOISASI MOPIA VS REPUBLIC6 min read

BRIAN MOISASI MOPIA VS REPUBLIC

High Court at Kajiado High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

MISC. CRIMINAL APPLICATION NO.E052 OF 2021

BRIAN MOISASI MOPIA…………………………..………………………….APPLICANT

VERSUS

REPUBLIC…………………………………….…………………………….RESPONDENT

RULING

Background

  1. The Applicant has moved this court through a Chamber Summons filed in court on 9th February, 2022. He is seeking revision of sentence. The application is pegged on Sections 216 and 329 of the Criminal Procedure, Articles 22(1), 23(1), 25(1), (a)(b)(c)(d), 27, 50 and 165 of the Constitution of Kenya 2010 and all other enabling provisions  of the law for orders that: 
    1. The Honourable Court be pleased to set aside the death sentence meted out to the Applicant and the sentence be commuted to time already served in prison and /or Alternatively the Honourable Court be pleased to grant a non-custodial sentence.
    2. That the Honourable Court be pleased to grant any other appropriate sentence in lieu thereof as it deems fit.
  2. The Application was supported by an affidavit sworn by the Applicant on 30th August, 2021. He stated that he was charged with the offence of murder contrary to section 203 as read with section 204 in Kajiado HCCR 25 of 2015. That on 27th August, 2017 he was convicted and sentenced to suffer the death penalty. That he is currently at Kamiti GK Prison with ID KAM/1001/2017/CON. That he was convicted at the time the death penalty was mandatory. That following the Supreme Court case of Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLR, the death penalty was considered unconstitutional. It is his case that he has served almost 11 years in prison.
  3. It was his case that he has reformed while in prison and that he is extremely remorseful; that he has undergone several rehabilitation programs while in custody; that he is a husband and a father of 2 children and that he would wish to re-unite with his family.
  4. He has further stated that he has sought forgiveness from his family who were the victims and that they have accepted him back and that he believes that the objective of his intended sentence has been met and seeks this court’s intervention to grant him the prayers sought.

Submissions

  1. This court ordered that the matter be heard by way of written submissions. The Applicant filed his submissions dated 20th September, 2024 in which he has submitted that he was 28 years old when he was arrested. That he has already served 11 years and is now 39 years. That during this period he has been rehabilitated and that section 333(2) of the Criminal Procedure Code requires courts to take time spent in custody when passing sentence. He relied on the case of Bethwel Wilson Kibor-vs-Republic [2009] eKLR and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) which emphasizes rehabilitation and reintegration of prisoners into society.
  2. He argued that when he was sentenced, the prosecution noted that he was a first offender; that during incarceration he has demonstrated exemplary conduct while in prison and has participated in rehabilitation programs including vocational training and educational programs which demonstrates that he is ready to be reintegrated into society.
  3. He relied on the case of Vincent Shadrack Mwangi & Another -vs – Republic [2021] eKLR where expressions of remorse have been used as a foundation of reducing sentences and argued that the Universal Declaration of Human Rights (UDHR) and the African Charter on Human and People’s Rights (ACHPR) provide for the dignity of every individual, including prisoners and advocate for frameworks for penal systems that prioritize rehabilitation over retribution and that sentencing must reflect the potential for offenders to be reformed and reintegrated.
  4. He cited cases where sentences were reduced following the Muruatetu decision such as William Okungu Kittiny -vs- Republic [2018] eKLR where the Court of Appeal reduced the death sentence to 20 years and in Douglas Muthaura Ntoribi -vs- Republic [2020] eKLR where the sentence was reduced to a custodial sentence of 15 years taking into account the period already served as well as the Applicant’s positive prison record.
  5. He also relied on the probation report which advocated for the non-custodial sentence after considering that the Applicant has reformed. He urged this court to consider these factors and grant the orders sought.
  6. There are no submissions from the Respondent. The prosecution, however, stated orally in court that they oppose the application and that the sentence is legal and therefore the Applicant should continue serving the sentence.
  7. A sentence review report was filed in court on 16th August, 2023. From the report the Applicant was born in a family of 6 children. That the mother is a peasant farmer. That he has one brother and 4 sisters. Further that he has a wife and two children. The deceased was the biological father and therefore his family are the victims. That the mother though heartbroken by the murder has since forgiven her son. It was her case that she prays that he be released so as to be able to take care of her and his family. From the report it is clear that the family has forgiven him.
  8. The area chief together with his wife stated that the applicant has been reformed since he has  been in prison and should be released to be able to take care of his family. The report indicates that the Applicant is remorseful and reformed. The report recommended that the Applicant is suitable for release and may be considered for probation order to help in the reconciliation and healing of the family.

Determination 

  1. I have read the application, the affidavit, the submissions and the sentence review report. The main issue for determination is whether the orders sought by the Applicant should be granted.
  2.  From the mitigation as set out herein the Applicant is a first offender. He has expressed remorse. The reports from prison and the Probation Office indicate that the Applicant has reformed and is fully rehabilitated. The Recommendation Letter by the Prison authorities dated 8th August, 2023 express that he is of good health, disciplined and has maintained a clean prison record. The letter also outlines the recreational activities, religious educational programs the Applicant has undertaken and stated that he sat for his KCPE while in custody. They have also attached various certificates to evidence this.
  3.  I have also considered the fact that the Applicant’s family is willing to support him to start life afresh. The sentence review report shows that the victim’s family which is also the Applicant’s family has forgiven him and that the Applicant has reformed during the 11 years he has been in custody.
  4. I have considered this Application and the grounds in support. I am alive to the fact that during the time the Applicant was sentenced, mitigation was not considered given the mandatory nature of section 204 of the Penal Code. Following Muruatetu case, trial courts are not able to exercise discretion in passing the sentence.  In Nickson Kipchirchir Ruto v Republic [2020] eKLR, the Court held that:

“There is now a raft of jurisprudence where the death sentence has in appropriate cases been substituted with a sentence of 30 years in prison. Hence, I would set aside the sentence of death and substitute it with imprisonment for 20 years with effect from the date he was 1st held in custody.”

  1. I have considered the circumstances surrounding this case and the arguments of the Applicant. I have also considered authorities where courts have intervened and allowed substitution of death sentence with a prison term. It is my finding that this is such an appropriate case where death sentence ought to be substituted with a sentence of a prison term. I am therefore persuaded to allow this application and substitute the death sentence herein with a prison term of 20 years. The Applicant shall continue serving sentence for the remainder of the term of 20 years.
  2. For the avoidance of doubt, the number of years served by the Applicant as of the date of this ruling, shall be subtracted from 20 years so that the Applicant can serve the remainder of the term so that he will have served a total of 20 years imprisonment. Orders shall be issued accordingly.

Dated, signed and delivered this 24th day of  January 2025.


    BRIAN MOISASI MOPIA VS REPUBLIC BRIAN MOISASI MOPIA VS REPUBLIC