Chula v Director of Public Prosecutions (Petition 93 of 2021) [2023] KEHC 25181 (KLR) (9 November 2023) (Judgment)
Neutral citation:
[2023] KEHC 25181 (KLR)
Republic of Kenya
Petition 93 of 2021
OA Sewe, J
November 9, 2023
IN THE MATTER OF ARTICLE 22(1) AND 23(1) OF THE
CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 24, 25, 27,
28, 48, 50, 258 AND 259 OF THE CONSTITUTION
AND
IN THE MATTER OF SECTION 203 AS READ WITH SECTION
204 OF THE PENAL CODE, CHAPTER 63 OF THE LAWS OF
KENYA
Between
Karisa Charo Chula
Petitioner
and
Director of Public Prosecutions
Respondent
Judgment
[1]The petitioner, Karisa Charo Chula, approached the Court for re-sentencing vide his Petition filed on 24th June 2021. He averred therein that he is an adult of sound mind, currently serving life sentence at Shimo La Tewa Maximum Prison. He explained in his Supporting Affidavit that he was arrested and charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya in Malindi High Court Criminal Case no 19 of 2008. He further averred that he pleaded not guilty and, after trial, was found guilty and convicted of the offence as charged. He was consequently sentenced to suffer death.
[2]The petitioner further averred that, being aggrieved by his conviction and sentence, he filed an appeal to the Court of Appeal, being Mombasa Criminal Appeal no 18 of 2013; but that his appeal was ultimately dismissed. He consequently resorted to filing the instant Petition seeking the following orders:(a)A declaration that the death sentence meted out to him is manifestly excessive, unjust and unfair and against the objectives of sentencing as stipulated in the Judiciary Sentencing Policy Guidelines, 2016.(b)A declaration that the death sentence meted out to him amounts to inhumane and degrading treatment and therefore a violation of Article 25(a) of the Constitution.(c)A declaration that the death sentence meted out to him amounts to an act of inhumane and degrading treatment as was held by the African Commission on Human and People’s Rights.(d)That the period spent in remand custody be counted as part of his custodial sentence pursuant to Section 333(2) of the Criminal Procedure Code.(e)That the sentence meted out to him be reduced to the least severe of the prescribed punishments, preferably to the period already served, pursuant to Article 50(2)(p) of the Constitution.
[3]In support of his Petition, the petitioner averred that he has since reconciled with the deceased’s family and they are now living in harmony. He added that he is remorseful for the offence, and that it was not premeditated but happened due to the prevailing circumstances. He further deposed that, while it is true that crime should be punished, punishment that is excessive serves neither the public interest nor the cause of justice. He accordingly prayed that his Petition be allowed and the orders prayed for granted in his favour in line with the decision of the Supreme Court of Kenya in Francis Karioko Muruatetu v Republic [2017] eKLR.
[4]Granted the nature of the Petition, an order was made on the 5th November 2021, when the matter first came up for mention, for the Deputy Registrar to avail the trial record in Malindi High Court Criminal Case no 19 of 2008 as well as the record of Mombasa Criminal Appeal no 18 of 2013. By 4th May 2023, neither the record of the trial court nor the record of the Court of Appeal had been availed. In the circumstances, the matter was fixed for hearing on the basis of the reported judgment of the Court of Appeal in Malindi Criminal Appeal no 63 of 2016: Karisa Charo Chula v Republic. It thereupon became manifest that the petitioner had filed a previous Petition on similar grounds for re-sentencing before the High Court at Malindi, being Malindi High Court Constitutional Petition no 62 of 2019: Karisa Charo Chula v Director of Public Prosecutions, in which a judgment was rendered on 16th December 2020. The petitioner’s death sentence was consequently substituted with imprisonment for a term of 40 years.
[5]In the premises, it is apparent that the petitioner was not altogether truthful when he averred that he is currently serving “a mandatory life sentence”. That notwithstanding, the Petition was urged orally on the 21st September 2023 when the petitioner opted to rely entirely on his Petition and the Supporting Affidavit filed therewith. On its part, the respondent opposed the Petition, contending that the sentence was justified. Counsel for the respondent urged the Court to note that the deceased was a middle-aged woman; and that, in addition to 19 deep cuts that were inflicted on her head and several cut wounds on the body, one of her arms was chopped off completely and was missing. Accordingly, counsel urged the Court to find that sentence was warranted, taking into consideration the extent of brutality that the deceased was subjected to.
[6]The respondent further submitted that, although the petitioner relied on the Muruatetu Case, the Supreme Court did not, in its determination, abolish the death sentence. Accordingly, the respondent urged that the death sentence be upheld.
[7]The background facts leading to the conviction and sentence of the petitioner are not in dispute. They were aptly captured by the Court of Appeal in Malindi Criminal Appeal no 63 of 2016. The account shows that on 27th January, 2008, the deceased, Jumwa Kenga Ngola, Dama Ngarema (PW3), and her daughter Karembo Garama (PW7) left for the communal tap to buy water. On the way to the tap, they met the petitioner who apparently had an illicit love affair with the deceased. The petitioner is said to have stopped the deceased and engaged her in conversation while the others walked on to the water point.
[8]Later the same night at around 7.00 p. m, the petitioner went to PW3’s house and requested her to go and collect the water and some vegetables which had been left for the deceased at the water point. The petitioner is said to have informed PW3 that he had decided to take the deceased away as his wife as her husband had already discovered their illicit love affair. PW3 then went to the water point and collected the items in question and took them to the house of Dama Kenga (PW1). PW1 was deceased’s co-wife. PW3 informed Dama of what had happened and Dama passed the information to her husband Kenga Ngala (PW2).
[9]Upon learning of his wife’s disappearance and the circumstances under which she had left, PW2 reported the matter to their area Sub-Chief, PW4. According to PW4, he suspected that the deceased had eloped with the petitioner. He therefore wrote a letter to the petitioner summoning him to appear before him on 3rd February, 2008 supposedly to explain why he had eloped with another man’s wife. The petitioner did not heed the summons and so PW4 advised the deceased’s husband to report the matter to the police; which PW2 did. PW2 and others then started looking for the deceased. They recovered the deceased’s body at Bahari Girls School on 15th February, 2008. The body was badly mutilated and had several panga cuts on the head and body. One of the arms was said to be missing.
[10]The matter was reported to the police and the body was removed and taken to the mortuary by PW8 Cpl Patrick Situma and other officers from Kilifi Police Station. The trial court was further told that after the recovery of the deceased’s body, the petitioner disappeared from the area, and so a search was mounted for him. The petitioner migrated to his in-laws home; and according to Mwalimu Charo (PW10), the petitioner went to their home in Kitengweni on 3rd February, 2008 on the guise that he was looking for his wife. PW10 also told the trial court that the petitioner was behaving strangely; and that he started blocking passers-by from a path that passes through the in-laws home. Asked why he was blocking the people, the petitioner is said to have answered that he did not want the people to see him as they would likely pass information and he could be arrested.
[11]PW10 further testified that, after a few days they disagreed and he sent the petitioner away. Thereafter the petitioner occasionally visit their home only to disappear later and reappear at night. He was eventually arrested from a local church on 14th September, 2008 by a village elder, Kahindi Ruwa Nzai (PW9), the Chief Benson Santa Tsoka (PW11) and PW12 Kahindi Kaluma. He was taken to Kilifi Police Station where he was rearrested by IP Newton Sangalia Mjomba (PW13), and charged with the offence of murder.
[12]Post-mortem examination was performed on the deceased’s body by Dr. Muriuki at Kilifi hospital. It confirmed that there were multiple cuts on the skull, suspected to have been caused by a sharp object. The cause of death was found to be severe head injury due to cuts inflicted by sharp object.
[13]When placed onto his defence, the petitioner opted to give an unsworn statement. He called one witness to his defence. He confirmed that he knew the deceased as his neighbour. He also admitted that, on the fateful day, he met the deceased and PW3 and her daughter as they were going to fetch water. He said that he called the deceased aside and sent her to go and buy flour and take it home to his wife. When he went home that evening, his wife informed him that the flour had been delivered by two men namely Jumwa and Karisa Tele. His version of the events was that he did not see the deceased thereafter.
[14]Four days later, he was approached by a village elder who was enquiring about the whereabouts of the deceased. He said he did not know where she was. He was arrested several months later from his wife’s home area where he had pursued her after she left his home. Thus, the petitioner denied having murdered the deceased.
[15]It was on the basis of the foregoing that the trial court found the petitioner guilty of murder in its judgment dated 10th May, 2013. As has been stated herein above, that sentence was upheld on appeal. Here is what the Court of Appeal had to say:21.After considering all this evidence our conclusion is that it was indeed the appellant who killed the deceased. The motive may not be known but clearly, from the nineteen cut wounds found on the deceased’s skull, along with a severed missing arm, there is no doubt that the killer had the intention of killing her. Malice aforethought as envisaged by section 206 (a) Penal Code was therefore established.22.In all, we find that the learned Judge considered the evidence before her, applied the law properly and arrived at the correct determination. We find no fault with her judgment. The conviction and sentence were soundly predicated on the law and evidence before the court.Consequently, we find this appeal lacking in merit. We dismiss it and uphold trial court’s conviction and sentence.”
[16]Accordingly, the single the single issue for determination in this Petition is whether, in the circumstances, the petitioner’s prayer for re-sentencing is tenable. This is because upon the dismissal of his appeal, the petitioner filed Malindi High Court Constitutional Petition no 62 of 2019 for resentencing on largely the same grounds as the instant Petition. The Petition was heard and determined on 16th December 2020 by Hon. Nyakundi, J., whereupon the petitioner’s death sentence was substituted with imprisonment for 40 years. Here is what the learned judge had to say:
[17]Accordingly, the issue of re-sentencing having been comprehensively considered by a court of concurrent jurisdiction on the basis of Article 50(2)(p) and (q) of the Constitution, Francis Karioko Muruatetu (supra) as well as Section 333(2) of the Criminal Procedure Code, it is not open to this Court to entertain another Petition on the same grounds as it would amount to sitting on appeal in respect of a decision by a judge of contemporaneous jurisdiction. In this connection, I agree entirely with the expressions of Hon. Aburili, J. in Constitutional Petition no 5 of 2018 Daniel Otieno Oracha v Republic [2019] eKLR, that:14.The law abhors the practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise.15……16.The judgment of Abida Ali-Aroni J made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of concurrent competent jurisdiction when the Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.17.Good governance demands that cases be handled procedurally in the right forum. This is because the rule of the thumb that superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves and that matters falling under the exclusive jurisdiction of Supreme Court under Article 163(3) cannot be dealt with by the High Court.
[18]In the premises, I have had no hesitation in dismissing the Petition, which I hereby do.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 9TH DAY OF NOVEMBER 2023OLGA SEWEJUDGE