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High CourtPartially AllowedNot stated in judgment (resentencing petition arising from Criminal Case No. 207 of 2004)

Samson Katana Kazungu v Republic

High Court of Kenya

11 November 2019

EOE. K. Ogola

537 words in judgment

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The bottom line

When a death sentence is overturned in Kenya, the court still decides the new prison term based on whether the convict has shown genuine reform.

What this practically means

Executive summary

The petitioner, Samson Katana Kazungu, was convicted in Criminal Case No. 207 of 2004 of robbery with violence contrary to Section 296(2) of the Penal Code, together with indecent assault, three counts of assault causing actual bodily harm and handling stolen goods, and sentenced to death. His appeal to the Court of Appeal was dismissed on 18 July 2008. The petition came before the High Court at Mombasa for resentencing pursuant to the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, which declared the mandatory death sentence unconstitutional. The petitioner, who had been in custody for 16 years, submitted that this period was sufficient punishment and sought release. The prosecution, through Mr. Fedha, submitted that the offence was heinous and warranted 25 years' imprisonment. The court, per E. K. Ogola J, set out the sentencing principles applicable on resentencing: mitigation, retribution, rehabilitation and reformation, and whether the convict is remorseful and sufficiently reformed to assume life in a free and orderly society. Recalling the particulars of the robbery - a joint attack while armed with pangas and rungus in which the complainant lost phones, radios, cash and shop goods valued at Kshs 65,000 - the court found the petitioner's submissions brief, noted an absence of remorse and no indication of reformation, and held that the sentencing objectives had not been realised. It declined immediate release, set aside the death sentence, and imposed a term of 22 years from the date of arrest, departing from the prosecution's suggested 25 years.

Key legal issues

Resentencing following Muruatetu

Holding

The mandatory death sentence having been declared unconstitutional, the court may substitute an appropriate term of years after considering mitigation, retribution, rehabilitation and reformation

Reasoning

The court applied the Supreme Court's Muruatetu decision, evaluated the petitioner's mitigation and conduct over 16 years in custody, found no remorse or reformation, and concluded release was not yet warranted, substituting a 22-year term.

p. 2

Whether 16 years in custody sufficed as punishment

Holding

No - the sentencing objectives of retribution, rehabilitation and reformation had not been realised

Reasoning

The court weighed the petitioner's brief submissions, absence of remorse and lack of evidence of reform against the heinous nature of the robbery with violence, and declined immediate release despite 16 years served.

p. 2

Legal principles established

In resentencing after Muruatetu, the court must consider mitigation, retribution, rehabilitation and reformation, and whether the convict can reasonably be expected to assume life in a free and orderly society

Court orders

1.Death sentence set aside
2.Imposition of a term of 22 years imprisonment from the date of arrest

On appeal from: Court of Appeal; Appeal against conviction and sentence in Criminal Case No. 207 of 2004
Jurisdiction invoked: Resentencing jurisdiction following the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declaring the mandatory death sentence unconstitutional

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Samson Katana Kazungu v Republic", Case Analysis (2019). Not stated in judgment (resentencing petition arising from Criminal Case No. 207 of 2004). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.