Khaemba v Director of Public Prosecution (Criminal Miscellaneous Application E079 of 2021) [2024] KEHC 9297 (KLR) (25 July 2024) (Ruling)
Neutral citation:
[2024] KEHC 9297 (KLR)
Republic of Kenya
Criminal Miscellaneous Application E079 of 2021
HM Nyaga, J
July 25, 2024
Between
Robert Simiyu Khaemba
Applicant
and
Director of Public Prosecution
Respondent
Ruling
1.The Applicant, Robert Simiyu Khaemba through application dated 3rd June, 2024 moved this Court for sentence rehearing.
2.In his supporting affidavit, the Applicant avers that he was charged with the offence of robbery with violence in the year 1999 and he was convicted and sentenced to death. He states that his sentence was later commuted to life imprisonment.
3.He asserts that since the year 1999 he has been in custody and he prays that the years spent in custody be treated as enough punishment.
4.The Respondent did not file any response to the Application.
5.The Application was argued through written submissions.
Applicant’s Submissions
6.The Applicant submitted that his rights to fair trial as enshrined under Articles 25(c) and 50(2) (p) of the constitution was breached as the mandatory death sentence imposed by the trial court fettered its discretion to impose appropriate sentence and the same was arrived at after the court failed to take into consideration his mitigation.
7.The Applicant posited that pursuant to Article 50(2)(p) of the Constitution he was entitled to benefit from the least severe of the prescribed punishment for the offence.
8.The Applicant argued that this court under Articles 22(1) and 23(1) has jurisdiction to hear and determine whether his rights and fundamental freedoms which cannot be limited as provided under Article 25(a) and (c) were violated.
9.In light of the above, the Applicant urged this court to intervene and receive his mitigation herein or release him by ordering that the period served in prison is sufficient sentence.
10.The Applicant submitted that he has been in lawful custody for 24 years and urged this court to grant him appropriate lenient definite sentence taking note that life expectancy of a human being is Seventy (70) years.
11.The Applicant posited that he deserves a lenient sentence because he was a first time offender; there was no life lost during the commission of the offence; he has been in prison for 24 years; he has undergone sufficient rehabilitation; he cannot be rehabilitated for life and there has to be an end to rehabilitation; and he ought to be integrated into the society so that he can rebuild his life.
12.To demonstrate his reformation, he attached a certificate of trade test grades III, II and II as a spray painter & Trade test certificate for Grade III, II and I in sheet metal from the National Industrial Training Authority he acquired in prison.
13.In buttressing his submissions in regard to unconstitutionality of the mandatory sentences, he placed reliance on the cases of;a.Francis Karioko Muruatetu & another v Republic [2017] eKLRb.Omukanga v Republic Criminal Appeal No. 260 of 2019;c.Julius Kitsao Manyeso v. Republic Malindi CACRA No. 12 of 2021.d.Boniface Keya v Republic Misc. Criminal Application No. E007 of 2023
14.The Applicant also urged this court in resentencing him to adopt the criteria established in James Kariuki Wagana v Republic [2018] eKLR; Simon Kimani Maina v Republic [2019] eKLR; Joseph Kaberia Kainga v Republic [2019] eKLR; & Martin Bahati Makoha & Another v Republic [2018] eKLR.
15.The Applicant citing Section 333(2) of the Criminal Procedure Code, urged this court to consider the period he has spent in remand custody. To support this position, he relied on the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR.
16.He prayed that he be sentenced to serve three years’ probation.
Respondent’s Submissions
17.The Respondent submitted that sentences are about keeping the offender’s away from the society which acts as a lesson to the accused and the public so that such offences are not committed.
18.The respondents prayed that this court exercises its discretion in sentencing the Applicant.
Analysis & Determination
19.There are two issues that arise for determination.1.Whether this court has jurisdiction to determine this matter.2.If answer to the above is in the affirmative, whether the Applicant’s plea for resentencing is merited.
Issue No.1
20.It is not in dispute that t the Applicant was charged, convicted and sentenced to suffer death for the offence of Robbery with violence contrary to Section 296(2) of the Penal Code. His sentence was later commuted to life sentence.
21.The Applicant seeks review of his sentence on ground that mandatory death penalty is unconstitutional.
22.The issue of mandatory sentences was addressed in Francis Karioko Muruatetu & others v Republic (2017) eKLR (Muruatetu 1) where the Supreme Court held that the mandatory death sentence prescribed for the offence of Murder by section 204 of the Penal Code was unconstitutional. The Court took the view that:
23.In clarifying the import case of its earlier decision, in Muruatetu 2 the Supreme Court gave the following guidelines:
24.Subsequent to the above decision, a lot of emerging jurisprudence has come to the fore on the question of these so called mandatory sentences in other offences other than murder.
25.For instance, the court in William Okungu Kittiny v Republic, Court of Appeal, Kisumu Criminal Appeal No. 56 of 2013 [2018] eKLR applied the reasoning in the Muruatetu 1 case to the offence of robbery with violence. The Court held that at paras 8 and 9 that:
26.Guided by Muruatetu 1 and 2 & the decision in William Okungu Kittiny’s case (supra), many High courts have reviewed the death sentences meted against applicants charged with robbery with violence and substituted them with a determinate sentence.
27.However, the Supreme court recently in the Petition No. E018 of 2023 Republic v Joshua Gichuki Mwangi (Respondent) & Initiative for strategic litigation in Africa & 3 others (Amicus curia) delivered on 12th July,2024 with regard to the mandatory death sentence in offences other than murder held as follows: -
28.In light of the above, it is clear that Muruatetu’s is inapplicable to the offence herein.
29.The above decision is binding on this court and as such I hold that this court is bereft of the necessary jurisdiction to determine this matter and the same is hereby dismissed.
30.Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 25TH DAY OF JULY, 2024.H. M. NYAGA,JUDGE.In the presence of;Court Assistant JenifferNancy for stateAccused present