1. The applicant was charged and convicted for robbery with violence contrary to section 296(2) of the penal code. He was sentenced to death by the Chief Magistrates court at Kisii. The was sentence to death . He appealed l to the High court at Nairobi in Criminal appeal number 157 of 2000 was dismissed and the conviction and sentence upheld . He is currently serving a life sentence as the death sentence against him was commuted to life imprisonment by the president .He is making this application based on the ruling at the Mombasa high court (constitutional and human rights petition number 5 and 6)(consolidated)(2022)delivered on 6th February 2024 quoting page 29 paragraph 49 where it was held that the mandatory nature of the death penalty as provided for under section 296(2)and 297(2) of the penal code is unconstitutional and that the petitioners be presented before the respective courts for sentence and re hearing upon appropriate applications being made in that regard in line with paragraphs 2.2.1,2.2.2,2.2.3 and 2.2.4 of the judiciary sentencing guidelines.
2. The prosecution submitted that tis matter is not ripe for review considering the circumstances and the Muruatetu case . He prayed that the same be dismissed .
3. The supreme court in it’s land mark decision in Muruatetu and another v Republic Katiba institute and 4others(amicus curiae)(petition 15 and 16 of 2015)[2021]KESC 31 (KLR)(6 JULY 2021)(directions)issue the following directions regarding sentencing “16.to the extent directly relevant to the matter under review in this direction we note that the Attorney General in his report recommended that the death penalty should only be reserved for the rarest of the rare cases involving intentional and aggravated acts of killing. All offenders subject to the mandatory death penalty including those convicted and sentenced prior to 2010 who are serving committed sentence are be eligible for resentencing including all offenders sentence to death upto the time of the decision which was made on 14 th December 2017. Where an appellant has lodged an appeal against a conviction end or sentence ,the appellate court must at any stage before judgement remit the case to the trial court for resentencing.
4. Having considered all the foregoing and to obviate further delay and avoid confusion the court the issued following guidelines to assist the courts ;
i)The decision of Muruatetu and this guidelines apply only in respect to sentences of murder under section 203 and 204 of the penal code
ii)The judiciary sentencing policy guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu
iii)All offenders subject to the mandatory death penalty and desire to be heard on the sentence will be entitled to resentencing hearing.
v) In resentencing hearing the courts must record the prosecutions and appellants submissions under section 329 of the criminal procedure code as well as those of the victims before deciding on the suitable sentence
vi) An application for resentencing arising from a trial before the High court can only be entertained by the High court which has jurisdiction to do so
vii) In rehearing sentence for the charge of murder both aggravating and mitigating factors such as the following will guide the court;
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 respect to gender based violence
f) The manner in which the offence was committed on the victim
g) The physical and psychological effect of the offence on the victim’s family
h) Remorsefulness of the offender
i) The possibility of reform and social re adaptation of the offender
j) Any other factor the court considers relevant
viii) Where the appellant has lodged an appeal against sentence alone the appellate court will proceed to receive submission on resentencing
ix)These guidelines will be followed by the high court and the court of appeal in ongoing murder trials and appeals they will also apply to sentences imposed under section 204 of the penal code before the decision in Muruatetu.
5. In addition to this the supreme court affirmed that as much as the above directions were only for sentences under section 204 it held that there is nothing that could stop the High Court in entertaining petitions challenging the constitutionality on mandatory sentences in other offences
3)Guided by the above statements of the supreme court, the high court in the Ramadhan case declared that the mandatory death sentence under section 296(2) is unconstitutional and the applicant as relied on this.
6. The High Court in the above case went further to declare that the directions given by the supreme court in resentencing mandatory death sentence murder convicts as stated above in vii, are applicable equally to resentencing robbery with violence convicts. Therefore applying the guidelines, the court has jurisdiction and in agreement with the High court in the Ramadhan case the application is properly before the court.
7. The question before this court therefore is whether the applicant is deserving of a review of his sentencing taking into considerations the guidelines given by the supreme court as read with the precedent in the Ramadhan court case is deserving of a review of his death penalty court case.it is however important to highlight that only the mandatory death sentence provided for in section 296(2) and the Said Section 296(2) of the penal code was declared unconstitutional in the said Ramadhan case.
8.The applicant submitted that since the death sentence was mandatory during his appeal whether he mitigated did not matter at all. He further submits that the period he had spent in remand in ought to be considered under accordance with section 333(2) of CPC
9. In addition to this he submits that during the two and a half decades spent in prison he has not been idle but has been pursuing different courses which are evidenced by the attached copies of the certificates submitted to the court. The appellant stated that he has also been promoted to the special stage trustee due to his good behavior in prison and attached copies of his testimonials .
10. I have carefully considered the nature of the offence ,mitigation, the 25 years which the applicant has served in prison , the circumstances and the sentence meted out by the trial and all the the other necessary factors, the applicant has indicated in his mitigation that he is remorseful for his actions and he has exhibited numerous certificates he has received in prison and his good conduct in the prison in addition he has various certificates of skills he has acquired while in prison.
11. I therefore find merit in the application and proceed to re-sentence applicant to 30 years imprisonment in place of the death sentence meted out by the lower court. The remand period for the applicant herein is from plea taking date to the conviction date. Plea was taken on 9.7.1999 and he was convicted on 21.7.2000. The said remand period be considered in computing his sentence .
12. It is so ordered.
2. The prosecution submitted that tis matter is not ripe for review considering the circumstances and the Muruatetu case . He prayed that the same be dismissed .
3. The supreme court in it’s land mark decision in Muruatetu and another v Republic Katiba institute and 4others(amicus curiae)(petition 15 and 16 of 2015)[2021]KESC 31 (KLR)(6 JULY 2021)(directions)issue the following directions regarding sentencing “16.to the extent directly relevant to the matter under review in this direction we note that the Attorney General in his report recommended that the death penalty should only be reserved for the rarest of the rare cases involving intentional and aggravated acts of killing. All offenders subject to the mandatory death penalty including those convicted and sentenced prior to 2010 who are serving committed sentence are be eligible for resentencing including all offenders sentence to death upto the time of the decision which was made on 14 th December 2017. Where an appellant has lodged an appeal against a conviction end or sentence ,the appellate court must at any stage before judgement remit the case to the trial court for resentencing.
4. Having considered all the foregoing and to obviate further delay and avoid confusion the court the issued following guidelines to assist the courts ;
i)The decision of Muruatetu and this guidelines apply only in respect to sentences of murder under section 203 and 204 of the penal code
ii)The judiciary sentencing policy guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu
iii)All offenders subject to the mandatory death penalty and desire to be heard on the sentence will be entitled to resentencing hearing.
v) In resentencing hearing the courts must record the prosecutions and appellants submissions under section 329 of the criminal procedure code as well as those of the victims before deciding on the suitable sentence
vi) An application for resentencing arising from a trial before the High court can only be entertained by the High court which has jurisdiction to do so
vii) In rehearing sentence for the charge of murder both aggravating and mitigating factors such as the following will guide the court;
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 respect to gender based violence
f) The manner in which the offence was committed on the victim
g) The physical and psychological effect of the offence on the victim’s family
h) Remorsefulness of the offender
i) The possibility of reform and social re adaptation of the offender
j) Any other factor the court considers relevant
viii) Where the appellant has lodged an appeal against sentence alone the appellate court will proceed to receive submission on resentencing
ix)These guidelines will be followed by the high court and the court of appeal in ongoing murder trials and appeals they will also apply to sentences imposed under section 204 of the penal code before the decision in Muruatetu.
5. In addition to this the supreme court affirmed that as much as the above directions were only for sentences under section 204 it held that there is nothing that could stop the High Court in entertaining petitions challenging the constitutionality on mandatory sentences in other offences
3)Guided by the above statements of the supreme court, the high court in the Ramadhan case declared that the mandatory death sentence under section 296(2) is unconstitutional and the applicant as relied on this.
6. The High Court in the above case went further to declare that the directions given by the supreme court in resentencing mandatory death sentence murder convicts as stated above in vii, are applicable equally to resentencing robbery with violence convicts. Therefore applying the guidelines, the court has jurisdiction and in agreement with the High court in the Ramadhan case the application is properly before the court.
7. The question before this court therefore is whether the applicant is deserving of a review of his sentencing taking into considerations the guidelines given by the supreme court as read with the precedent in the Ramadhan court case is deserving of a review of his death penalty court case.it is however important to highlight that only the mandatory death sentence provided for in section 296(2) and the Said Section 296(2) of the penal code was declared unconstitutional in the said Ramadhan case.
8.The applicant submitted that since the death sentence was mandatory during his appeal whether he mitigated did not matter at all. He further submits that the period he had spent in remand in ought to be considered under accordance with section 333(2) of CPC
9. In addition to this he submits that during the two and a half decades spent in prison he has not been idle but has been pursuing different courses which are evidenced by the attached copies of the certificates submitted to the court. The appellant stated that he has also been promoted to the special stage trustee due to his good behavior in prison and attached copies of his testimonials .
10. I have carefully considered the nature of the offence ,mitigation, the 25 years which the applicant has served in prison , the circumstances and the sentence meted out by the trial and all the the other necessary factors, the applicant has indicated in his mitigation that he is remorseful for his actions and he has exhibited numerous certificates he has received in prison and his good conduct in the prison in addition he has various certificates of skills he has acquired while in prison.
11. I therefore find merit in the application and proceed to re-sentence applicant to 30 years imprisonment in place of the death sentence meted out by the lower court. The remand period for the applicant herein is from plea taking date to the conviction date. Plea was taken on 9.7.1999 and he was convicted on 21.7.2000. The said remand period be considered in computing his sentence .
12. It is so ordered.