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JudgmentJUMA MWAIPHA KARISA VS The Republic3 min read

JUMA MWAIPHA KARISA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NO. 365 OF 201 9AT MOMBASA AND HCCR APP NO. 057 OF 2023)


Introduction

  1. This Honourable Court is called to determine the undated Notice of Motion application by the Applicant who sought resentencing. The grounds of which were that the Applicant contended that Section 216 and 329 of the Criminal Procedure Code limits second appeal to conviction only; if not set aside by the 1st Appellate Court, the mandatory death sentence which was commuted to 20 years imprisonment  violates the right to a fair hearing under Article 50(2)(q) of the Constitution
  2. He urged the court to reconsider the sentence and weigh in the mitigating circumstances.
  3. According to him at the time of his committal he was 27 years old. He had been in prison for 2 years since his arrest. He was remorseful for the action that led to serve the death sentence which was later commuted to 20 years imprisonment.
  4. A  prisoner progressive report  was filed by the prison department. It is dated 29th January  2025 and shows who stated that the applicant had served  two years in prison. He is said to be learning some life skills and spiritual training.
  5. The report also shows that the applicant is on routine check up, treatment and controlled diet for uncontrolled  hypertension and duodenal ulcers .
  6. The Applicant’s indication was that he had learned his lesson for the time he had been in custody and committed to live more responsibility in the society. He prayed that the court to commute the remainder of his sentence to a non – custodial order so as to reunite with this family and assist his dependents.

Analysis and Determination

  1. The Supreme Court in Francis Karioko Muruatetu & Another – Versus -  Republic [2017] eKLR  gave the following guidelines with regard to mitigating factors applicable in a re-hearing sentence for the conviction of a murder charge thus:

[71]. As a consequence of this decision, paragraph 6.4-6.7 of the guidelines are no longer applicable. To avoid a lacuna, 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 JUDGMENTS          

Where there are guideline judgments, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bounded 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

  1. This is in appreciating the provisions of Article 50(2)(q) of the Constitution of Kenya 2010 which guarantees the right of a person if convicted, to appeal to, or apply for review by, a higher court as prescribed by the law. (See Daniel Otieno Oracha – Versus - Republic [2019] eKLR).
  2. Conclusion and Disposition.
  3. I find that the applicant has significant health challenges  which are best met at the home environment.
  4. By reason of the forgoing, I find that the application herein seeking orders of review  has merit and it is allowed under the decongestion policy.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……29th…………DAY OF ………April……………..…….., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora Court Assistant;

Mr. Ngiri……………State Counsel;

Applicant in person

    JUMA MWAIPHA KARISA VS The Republic JUMA MWAIPHA KARISA VS The Republic