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 trial court. His appeal to this court was dismissed vide KISII Criminal Appeal No. E014 of 2023. He is currently serving a life sentence. He has now filed the present application seeking resentencing. He bases his Application in the case of Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR) (6 February 2024) (Judgment) where the High court declared that the mandatory nature of the death penalty as provided for under Section 296(2) and 279(2) of the Penal Code is unconstitutional.
2. Prosecution submitted that the applicant had exhausted the grounds of appeal and thus did not qualify for re-sentencing . the applicant replied saying that he had filed his appeal but he was yet to be given a number which is not disputed. I will take it that he has abandoned the appeal intended appeal .
3. The Supreme Court in its the landmark decision in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) issued the following directions regarding resentencing: -
“16.To the extent directly relevant to the matters under review in these directions, we note the Attorney General in his Report, together with the Task Force recommended, that:
a) Life imprisonment be substituted where the Penal Code previously provided for the death penalty, with the option of life imprisonment without parole for the most serious of crimes; and that if not abolished, the death penalty should only be reserved for the rarest of rare cases involving intentional and aggravated acts of killing.
b) All offenders, subject to the mandatory death penalty, including those convicted and sentenced prior to 2010, who are serving commuted sentences, will be eligible for re-sentencing, including all offenders sentenced to death as at the time of the decision which was made on December 14, 2017.
c)Where an appellant has lodged an appeal against a conviction and/or sentence, the appellate court must, at any stage before judgment, remit the case to the trial court for re-sentencing…….
18. Having considered all the foregoing, obviate further delay and avoid confusion, we now issue these guidelines to assist the Courts below us as follows:
i. The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 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 who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
iv. Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.
v. In re-sentencing hearing, the court must record the prosecution’s and the appellant’s 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 re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
vii. In re-hearing 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 response 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 that the court considers relevant.
viii. Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.
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.
4. While the Supreme Court insisted that 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 of Mandatory sentences in other offenses. Truly being guided by the above observation of the Supreme Court the High court in the Ramadhan case which the Applicant has relied on to make his Application declared that the mandatory sentence under section 296(2) is unconstitutional. The High court by extension went further to declare that the directions given the supreme court in re-sentencing murder convicts which I have outlined above are applicable equally to resentencing robbery with violence convicts. I am in agreement with the decision of the High court in the Ramadhan case and I am strongly of the view that the Application is properly before me.
5. The question I have to grapple with therefore is whether the Applicant, taking into consideration the guidelines given by the Supreme Court, is deserving of a review of his death penalty sentence. While exercising my discretion consider this Application, it is important to state that court in the Ramadhani case just like the Supreme Court in the Muruatetu case did not at all outlaw death sentence. The court held that it is only the mandatory nature of the death sentences provided for in Sections 296(2) and 297(2) of the Penal Code that is unconstitutional.
6. The Applicant did mitigate before the trial court and told the court that he is a family man with school going children who are suffering due to his absence and that he is also losing his eye sight , he prayed for leniency and consideration of the period h spent in remand I have perused the lower court record and I note that from the record, the account of what the victim went through speaks volumes of what they went through during the ordeal. . The trial court held ‘’ This is a serious offense. The victims were left traumatized.” . I find that circumstances of the robbery for which applicant was convicted and sentenced herein were aggravated.
7. I have considered. , the nature of the offence, mitigation , the aggravating circumstances and the psychological effect of the offence on the victims , the sentence meted out by the trial court and all the necessary factors , The sentence was appropriate in the circumstances . There is need to for continued re-habilitation of the offender. I find merit in the application and I proceed to re-sentence the applicant to 30 years imprisonment instead of the death sentence meted out by the lower court .The sentence be computed from the first date of his remand i.e 26.5.20 till completion in full .
8. It is so ordered.
2. Prosecution submitted that the applicant had exhausted the grounds of appeal and thus did not qualify for re-sentencing . the applicant replied saying that he had filed his appeal but he was yet to be given a number which is not disputed. I will take it that he has abandoned the appeal intended appeal .
3. The Supreme Court in its the landmark decision in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) issued the following directions regarding resentencing: -
“16.To the extent directly relevant to the matters under review in these directions, we note the Attorney General in his Report, together with the Task Force recommended, that:
a) Life imprisonment be substituted where the Penal Code previously provided for the death penalty, with the option of life imprisonment without parole for the most serious of crimes; and that if not abolished, the death penalty should only be reserved for the rarest of rare cases involving intentional and aggravated acts of killing.
b) All offenders, subject to the mandatory death penalty, including those convicted and sentenced prior to 2010, who are serving commuted sentences, will be eligible for re-sentencing, including all offenders sentenced to death as at the time of the decision which was made on December 14, 2017.
c)Where an appellant has lodged an appeal against a conviction and/or sentence, the appellate court must, at any stage before judgment, remit the case to the trial court for re-sentencing…….
18. Having considered all the foregoing, obviate further delay and avoid confusion, we now issue these guidelines to assist the Courts below us as follows:
i. The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 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 who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
iv. Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.
v. In re-sentencing hearing, the court must record the prosecution’s and the appellant’s 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 re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
vii. In re-hearing 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 response 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 that the court considers relevant.
viii. Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.
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.
4. While the Supreme Court insisted that 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 of Mandatory sentences in other offenses. Truly being guided by the above observation of the Supreme Court the High court in the Ramadhan case which the Applicant has relied on to make his Application declared that the mandatory sentence under section 296(2) is unconstitutional. The High court by extension went further to declare that the directions given the supreme court in re-sentencing murder convicts which I have outlined above are applicable equally to resentencing robbery with violence convicts. I am in agreement with the decision of the High court in the Ramadhan case and I am strongly of the view that the Application is properly before me.
5. The question I have to grapple with therefore is whether the Applicant, taking into consideration the guidelines given by the Supreme Court, is deserving of a review of his death penalty sentence. While exercising my discretion consider this Application, it is important to state that court in the Ramadhani case just like the Supreme Court in the Muruatetu case did not at all outlaw death sentence. The court held that it is only the mandatory nature of the death sentences provided for in Sections 296(2) and 297(2) of the Penal Code that is unconstitutional.
6. The Applicant did mitigate before the trial court and told the court that he is a family man with school going children who are suffering due to his absence and that he is also losing his eye sight , he prayed for leniency and consideration of the period h spent in remand I have perused the lower court record and I note that from the record, the account of what the victim went through speaks volumes of what they went through during the ordeal. . The trial court held ‘’ This is a serious offense. The victims were left traumatized.” . I find that circumstances of the robbery for which applicant was convicted and sentenced herein were aggravated.
7. I have considered. , the nature of the offence, mitigation , the aggravating circumstances and the psychological effect of the offence on the victims , the sentence meted out by the trial court and all the necessary factors , The sentence was appropriate in the circumstances . There is need to for continued re-habilitation of the offender. I find merit in the application and I proceed to re-sentence the applicant to 30 years imprisonment instead of the death sentence meted out by the lower court .The sentence be computed from the first date of his remand i.e 26.5.20 till completion in full .
8. It is so ordered.