Kagotho v Republic (Criminal Application E007 of 2023) [2024] KEHC 16256 (KLR) (20 December 2024) (Ruling)
Neutral citation:
[2024] KEHC 16256 (KLR)
Republic of Kenya
Criminal Application E007 of 2023
DKN Magare, J
December 20, 2024
Between
Joseph Waititu Kagotho
Applicant
and
Republic
Respondent
Ruling
1.This is a ruling over an undated application filed on 4.8.2023 seeking rehearing of the sentence of life imprisonment imposed upon the Applicant.
2.The application is supported by the affidavit of the Applicant and it was deposed in material as follows:a.The Applicant was convicted of murder contrary to section 203 as read with 204 of the Penal Code.b.The Applicant exhausted all appeals on conviction and sentence.c.The Applicant seeks this court to uphold the constitution to do substantial justice.d.The Applicant seeks this court to consider his mitigation.
3.The Respondent filed a replying affidavit sworn on 11.10.2024 by David Mwakio, the prosecution counsel as follows:a.The Application was vexatious and scandalous.b.This court was functus officio.c.The Applicant had previously filed two similar applications in Petition No. 1 of 2019 and Petition No. E001 of 2020 grounded on similar principles and seeking the same reliefs and which were dismissed by two courts of concurrent jurisdiction.d.The application was therefore res judicata.
Submissions
4.The Applicant filed submissions on 12.2.2024. It was submitted that the applicant was highly remorseful and praying for forgiveness. That the sentence of life imprisonment did not consider sentencing guidelines and mitigation. He relied on Francis Karioko Muruatetu & Another vs Republic (2017) eKLR. He submitted that he had undergone reform programs and had earned certified skills in tailoring.
5.The Respondent did not file submissions.
Analysis
6.The issue is whether the Applicant’s life sentence should be reduced. However, before I venture into the issue of life sentence, I understand the Respondent to have extensively submitted that the application is res judicata. I consequently have to establish whether I should down my tools at this juncture.
7.It is my understanding that jurisdiction is everything. The court is bound to take jurisdiction where it has and down its tools where it does not have jurisdiction. My senior brother Nyarangi JA, as he was then, immortalized these words, in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR as follows: -
8.This means that the court cannot assume jurisdiction that it does not have nor eschew jurisdiction it has. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the supreme court stated as doth: -
9.The Supreme Court opined in Francis Karioko Muruatetu & Another v Republic (2017) eKLR (Muruatetu I) that the mitigation factors that may reduce a sentence imposed by the law by no way replace judicial discretion.
10.The court has noted the applications in Petition No. 1 of 2019 and Petition No. E001 of 2020 previously filed to this court by the Applicant herein. I note that in Petition No. 1 of 2019, the Applicant sought to review the sentence of life imprisonment downwards. The Court, Ngaah J, dismissed the application on the reasoning that the Applicant did not proffer any reason why the sentence should be commuted any further. Subsequently in Petition No. E001 of 2020, the Applicant applied to this court seeking among others, a determinate sentence. This Court, Muchemi J dismissed the application on the ground that the same was res judicata in view of the decision in Petition No. 1 of 2019.
11.In my view, the ruling of this Court in Petition No. E001 of 2020 did not determine the issues raised in the application. Petition No. 1 of 2019 did not equally deal with the issue of a determinate life sentence. The instant application cannot be said to be res judicata. The issue of a determinate sentence in the place of a life sentence remains alive and kicking to be determined by this court. It could be an attempt by a party to fold this court into believing that the entire issue of committal to a definite sentence as opposed to life imprisonment has been settled when on the face of the record the same has never been determined.
12.The purpose of this court is to do justice for both parties. I am unable to look aside and suffocate a clearly demarcated novel and legal issue raised by the Applicant about his mandatory life sentence that should be commuted to a determinate period. This, in our current constitutional dispensation does not mean that the life sentence is reduced as appears to be asserted by the Respondent. It means that a definite period of imprisonment be imposed instead of the life sentence which is significantly and as near as possible equivalent to the life sentence. Therefore, there would be no harm for my intervention to ensure substantive justice in this matter. Where constitutional justice is at stake, my call for intervention is even higher, taller and louder. I proceed to rule out the plea of res judicata and determine the application on its merits.
13.It is a settled principle that mandatory sentences deprive courts of discretion to impose appropriate sentences and are thus arbitrary and unconstitutional.
14.The instant application is premised among others on Article 50(2)(q) of the Constitution. Discretion in sentencing is a matter of justice and pertains to fair trial. Therefore, a person who suffers this deprivation may claim violation of the right to appropriate or less severe sentence - a principle embodied in the Constitution including Article 50(2)(p) of the Constitution as follows:
15.The death sentence originally meted out on the Applicant was commuted to life imprisonment pursuant to the presidential decree issued in 2009 by the then President of the Republic, His Excellency Emilio Mwai Kibaki. Re-sentencing merely provides an effective remedy to an injustice that may arise from a violation of a right or fundamental freedom. This was equally the view of this Court in Michael Kathewa Laichena & Another -v- Republic (2018) eKLR thus:
16.There is no straight jacket formula for sentencing an accused person on proof of crime. As was held by the Court of Appeal in Thomas Mwambu Wenyi vs Republic (2017) eKLR citing the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71:
17.The Applicant is serving life imprisonment. As I have established above, this court has jurisdiction to reconsider the indefinite life sentence meted upon the Applicant for the purposes of substitution with a determinate sentence, as was held in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Muruatetu II):
18.I also note that in Muruatetu II, the Supreme Court was categorical that the guidelines in Muruatetu I applied only with respect to sentences of murder under Sections 203 and 204 of the Penal Code.
19.The question of the constitutionality of death sentence is settled with ramifications that death sentence is unconstitutional. Subsequent jurisprudence has also determined that life imprisonment is equally unconstitutional and courts have remitted life sentences to a determinate period of time. This emerging jurisprudence is a product of a purposive reading of Articles 27 and 28 of the Constitution as applied to sentencing. In interpreting these provisions, the Court of Appeal in the Malindi Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso v Republic (Judgement 7/7/2023) (unreported) stated as follows:
20.In Muruatetu I, the Supreme Court referred to the case of Vinter and others v. the United Kingdom (Applications nos. 66069/09, 130/10 and 3896/10) in which the Court held that:
21.The discretion to sentence permits a balanced and fair sentencing, which is a hallmark of enlightened criminal justice, and proper consideration of the individual circumstances of each accused person is essential for substantive justice. In State vs. Tom, State v. Bruce (1990) SA 802 (A), Smalberger, JA, writing for the majority of Supreme Court of South Africa, made the following pertinent observations about sentencing in general and mandatory sentences in particular:
22.A provision of law should not deprive the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence for this can only be regarded as harsh, unjust and unfair. The Court in Mithu Singh vs. State of Punjab, 1983 AIR 473 stated as follows:
23.It is beyond peradventure that the cardinal duty of this court does not rest until it ensures that the sentences so prescribed are imposed in accordance with the Constitution. In the Constitutional Court of Uganda’s decision in Susan Kigula & 417 Others vs. Attorney General, Const. App. No. 3 of 2006, the court observed thus:
24.The court also notes the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. The objectives of sentencing as set out in the 2023 Sentencing Guidelines are as follows: -
25.It is high time this court exercises its full jurisdiction against non-determinate Methuselah sentences. The Supreme Court of Appeal of South Africa in S v Nkosi & others 2003 (1) SACR 91 (SCA) considered the constitutionality of the sentence where trial court had sentenced the appellants to terms of imprisonment of 120 years, 65 years, 65 years and 45 years respectively. The Court stated at para 9 as follows:
26.Parties to related criminal litigation have to catch up and live to the reality. Under no circumstance does life imprisonment mean the natural life of a convict. Back home, the Court of Appeal in Ayako v Republic (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023) (Judgment) stated as follows:
12.Based on the above discourse, I find legal basis on which to exercise my discretion in favour of the Applicant for in doing so I uphold the constitution. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:
27.The court has considered the probation report by Nicholas Muema dated 25.7.2024 as well as the prison reports. The Applicant is aged 45, first offender, of appraised character, remorseful and has possibility of reform or rehabilitation. The best I can do in the circumstances of our constitutional dispensation is to substitute life imprisonment with a determinate term. In my view, and taking into account the need for deterrence in the premeditated nature of the offence of murder on which he was convicted, and the victim admittedly as his lover; as well as the time spent in custody now 26 years, 35 years imprisonment is in my view appropriate. The prison term shall take into account the need for deterrence in the mediated nature of the offence of murder on which he was convicted, and the time spent in custody since 13.9.1998.
Determination
28.I therefore make the following orders: -a.The sentence of life imprisonment is substituted with a sentence of 35 years imprisonment.b.The sentence shall take into account the time spent in custody since the arrest of the Applicant on 13.9.1998.
DELIVERED, DATED AND SIGNED AT NYERI ON THIS 20TH DAY OF DECEMBER, 2024. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Mr. Mwakio for the StatePro se ApplicantCourt Assistant – Jedidah