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JudgmentTHABIT JAMALDIN YAHYA VS The Republic12 min read

THABIT JAMALDIN YAHYA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NO. 35 OF 2012 OF THE HIGH COURT AT MOMBASA)

Introduction

  1. This Honourable Court is called to determine the Notice of Motion application dated 29th August, 2024 by the Applicant who sought the following orders:-
  2. Spent
  3. THAT, I wish to be present during the hearing and determination of this petition.
  4. The Application is supported by the applicant’s affidavit wherein he avers that:-
  5. The Applicant was charged and convicted for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in Criminal Case No. 35 of 2012 at Mombasa High Court.
  6. The Applicant appealed to the Court of Appeal at Mombasa and the same was dismissed in its entirety hence this Application for re-sentencing.
  7. This Honourable Court is seized with competent jurisdiction under Article 165(3)(b) of the Constitution of Kenya 2010 to hear and determine the matter.
  8. The Applicant wished to be present during the hearing and determination of this petition.
  9. When the matter came up for directions the applicant indicated that he was seeking a review of the sentence and since he was acting in person and filed his documents from custody, the court waived the technical demands and applied the oxygen rule in line with Article 159 (2) (d) .
  10. The Probation office filed a sentence review report by Boytone Omondi dated 3rd December, 2024 where the officer intimated that the Applicant was remorseful for the offence and indicated that he had learnt his lesson for the time he had been in custody. The Applicant was responsible for the sustenance of the family as he had been a father figure to his children and the extended family members. The family members regretted his present circumstances which they termed as unfortunate as he had never been engaged in any criminal activity previously. The family members were very receptive of his return home and help him in resettlement and reintegration.
  11. In conclusion the officer indicated that the Applicant had served a considerable time in Prison and stated that he had learnt his lesson for the time he had been in custody and had committed to living responsibly in the society. The officer recommended that the Applicant’s prayers be allowed for a definite sentence as well as a consideration for the time already spent in custody.

Nature and scope of resentencing

  1. Re-sentencing is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review sentence.
  2. The Revised Sentencing  Policy Guidelines, on resentencing , states  that ;The phenomenon of re-sentencing hearings and the procedure of resentencing originate from the Supreme Court decision in Muruatetu I and II Cases. The import of the decisions is that all offenders convicted of murder who have been subject to the mandatory death penalty and desire to be heard on sentence are entitled to re-sentencing hearing for consideration of mitigation. In this circumstance, the re-sentencing court is clothed with the power to review a sentence by factoring in the weight of an offender’s mitigation in calculating a definitive term of imprisonment. As already noted, there is a resolute move towards reviewing all mandatory minimum and maximum sentences to promote judicial discretion and strengthen the right to a fair trial.
  3. The court will ordinarily check the legality or propriety or appropriateness of the sentence. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors, and the objects of punishments. In re-sentencing proceedings, conviction is not in issue.
  4. Even though it was not argued in this application  , It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the constitution A further leapfrog development; under article 50(2)(p) of the Constitution: 50(2) Every accused person has the right to a fair trial, which includes the right—(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.
  5. In Michael Kathewa Laichena & Another v Republic [2018] eKLR Majanja J. stated: “by re-sentencing the petitioner, the High Court is merely enforcing and granting relief for what is in effect a violation caused by the imposition of the mandatory death sentence”.
  6. Further, the Court of Appeal sitting in Malindi in Manyeso v Republic Criminal Appeal No. 12 of 2021 [2023] kECA 827 (KLR) held that mandatory life sentences are unconstitutional and are “an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. The said decision is supported by the case of Vinter and others v UK, in which the European court of human rights (ECHR) reasoned that indeterminate life sentence with no hope of parole was degrading and inhuman.
  7. Sentencing

Sentencing is a discretion of the court. But the court should look at the facts and the circumstances of the case in it’s entirely so as to arrive at appropriate sentence.

The Court of Appeal Thomas Mwambu Wenyi v Republic [2017] eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira v State of Mahareshtra at paragraph 70-71 where the court held the following . “Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.

  1. The Supreme Court in Francis Karioko Muruatetu & Another – Versus - Republic [2017] eKLR further 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.

[72] 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:

“25. GUIDELINE JUDGMENTS

25.1 Where there are guideline judgments, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bound 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 before it.”

  1. APPLICATION OF  LAW AND GUIDELINES

Having considered the above, I find that indeed this court has jurisdiction to entertain the application based on the decision of the Supreme Court in Muruatetu (supra). The Applicant has given his mitigation which I will consider alongside the circumstances of the case.

  1. The Applicant was convicted and sentenced for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence he faced were:

“On the 15th day of May, 2012 at Bella Vista Hotel Mombasa County, jointly with others not before the court, murdered Mary Cheptirim.”

  1. After the trial, the Applicant was found guilty and convicted of the offence. He was sentenced to suffer death as by law provided. He filed an Appeal and the Court of Appeal opined that they had also considered the circumstances of the case and the role played by the Appellant. They were satisfied that the learned judge exercised his discretion within the confines of the law. They found no reason to disturb that sentence. Consequence of which they dismissed the appeal.
  2. This Application has been made however after the Court of Appeal had already dealt with the matter and heard the Appeal where in his memorandum of appeal he raises nine grounds of appeal in which he challenges the learned judge’s findings on basis of relying on discredited dock identification; relying on disjointed and discredited DNA evidence; relying on extraneous information to associate the Appellant with terrorism activities and for declaring the attack a terrorist attack devoid of any evidence; relying on testimonial hearsay evidence; convicting the Appellant using evidence that did not meet the required standard of proof; for ignoring prosecution evidence tending to exonerate the Appellant; for rejecting the Appellant’s defence and for failing to consider the Appellant’s mitigation, failing to exercise his discretion and in holding that there was only one mandatory sentence av accused person was sentenced under the mandatory Section 204 of the Penal Code. (See paragraphs 110 and 111 of the said decision).
  3. .The petitioner was sentenced to life imprisonment, and there are various schools of thought on whether it is a proper sentence or not.  One side is of the view that a sentence should be  of a definite period and the other side holds that life means life.
  4. In a bid to assist the court in coming up with the best decision ,Mr. Chacha Mwita .The learned advocate who stepped in to  assist the Applicant made an application that a further medical report be prepared and filed, detailing the current health status and level of disability of the Applicant. The report dated 16th January 2025 was prepared by DR. WACHIRA THIONGO an orthopedic surgeon based at the NAIVASHA sub county referral hospital. It shows that the applicant has multiple scars on his left limb (foot, leg and thigh) arising from the injuries sustained and from surgical interventions to fix the fractures. He an amputated big toe of his left foot and he has a fully extended stiff knee on the left side with no degree of flexibility. The left ankle has limited range of motion with inversion 5 * reversion 5.*
  5. This report was relevant as one the grounds that the court should consider is the health status and disability level of the Applicant. It is not desirable to hold extremely ill people in custody especially where they cannot access the relevant health care. This not only breaches their dignity but is also an unwelcome expense to the state and even a bother or punishment , at times, to the other in mates who have to tend to them.
  6. PART III of the Revised Sentencing Policy  Guidelines is headed; CATEGORIES OF OFFENDERS REQUIRING FURTHER CONSIDERATION
  7. .Part  3.2 deals with OFFENDERS WITH DISABILITY’
  8. 3.2.1 states; Article 54 of the Constitution recognizes the right of persons with disability to be treated with dignity and to have reasonable physical access to all places . Further, Article 29 (f) recognises the freedom from cruel, inhuman or degrading treatment.
  9. Article 14 of the UN Convention on the Rights of Persons with Disabilities requires States to ensure that persons who are detained are accorded reasonable accommodation. These provisions have a bearing on the sentences imposed upon offenders with disability. The sentence imposed must not amount to cruel, inhumane or degrading treatment in view of the disability and the facilities available with respect to custodial sentences.
  10. At 3.2.2 the guidelines state that; The prisons infrastructure does not sufficiently accommodate persons with disability. In effect, where the extent of disability is high, the offenders suffer undue hardship, which sometimes amounts to inhuman and degrading treatment. There is a need to enhance accessibility and accommodation for persons with disability in prisons.
  11. 3.2.3 gives the following guideline: When imposing sentencing orders against offenders with disability, the court should ensure that the sentence imposed does not amount to an excessive punishment in light of the extent of disability, and considering the offence committed. In particular, the court should ensure that the sentence imposed does not amount to cruel, inhuman or degrading treatment in view of the extent of disability of the offender.
  12. 124; Consideration should be given to suspended sentences and other noncustodial sentences that can adequately reflect the seriousness of the offence whilst also serving the other aims of sentencing. Depending on the extent of disability, a doctor’s report may be required to having regard to the type of care, nutrition and treatment that may be required.
  13. The health status however, is not the only aspect that the court should take into account in a murder case the court has to consider both the aggravating and mitigating circumstance.
  14. The Sentencing Policy Guidelines sets out the following  Aggravating Factors in Murder Cases:
  15. i. A significant degree of planning or premeditation. ii. The mental or physical suffering inflicted upon the victim before death. Factors such as the type of weapon used, torture or inhuman or degrading treatment prior to death will be relevant. iii. The use of duress or threats to enable the offence to take place.  iv. The vulnerability of the victim e.g., due to age or disability. v. The fact that the victim was providing a public service or performing a public duty. vi. Multiple victims or multiple perpetrators. vii. Where the offence involved an abuse of trust. The relationship between the victim and the accused should be carefully considered. viii. Offence was motivated by, or there was demonstrated hostility to the victim based on his or her race, gender, sex, sexual orientation (or presumed sexual orientation), pregnancy, marital status (so called ‘honour killings’ for example), health status (e.g., murder occurred because of the HIV status of the victim, or albinism), ethnicity, culture, dress, language, birth, or religious orientation (or presumed religious orientation). ix. A history of assaults, threats, or coercion upon the same victim. x. Absence of self-defence or provocation. xi. The offence involved deliberate drugging or stupefying of the victim. xii. Proven abduction or kidnapping of the victim before the murder was committed. xiii. Where a demand for ransom was made, signifying a financial motive. xiv. Concealing, destroying, or dismembering the body. xv. Where the murder was conducted in furtherance of a ritualistic practice such as witchcraft.
  16. DETERMINATION
  17. In this case I note that the offence arose in circumstances a related  to terror activities and even the disability captured in the report was sustained during the commission of the offence.The nature and circumstances of the offence is another factor to be taken into account and having done so, I am not satisfied that the applicant ought to be released as of now even though the sentence review report was positive . I also note that the level of disability is not so severe or incapacitating such as to be said to be an affront to his dignity. He recovered whilst under the hands of the prison authorities with the residue disability .  It has not been said that he requires any other treatment which he cannot get in custody.
  18. I therefore find that the orders sought are not merited and as a result, the application dated 29th August, 2024 is dismissed.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …23rd….…………DAY OF ……………January…………..…….., 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 PRESENT VIRTUALLY AND  MR CHACHA PRESENT AS AN ASSISTING ADVOCATE

    THABIT JAMALDIN YAHYA VS The Republic THABIT JAMALDIN YAHYA VS The Republic