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High CourtAllowedPetition filed 04/12/2019 (Makueni High Court)

Petitioner v Republic (sentence re-hearing petition)

High Court of Kenya
24 September 2020
2,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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In Kenya, the death penalty is no longer mandatory, allowing judges to consider mitigating factors in serious crimes.

What this practically means

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Executive summary

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The petitioner was convicted of attempted robbery with violence under section 297(2) of the Penal Code for an incident on 26/01/2009 at Wote, Makueni, in which he and a companion, armed with a hammer, attempted to rob the complainant, who was not injured. He was sentenced to death on 31/03/2009 and his appeals to the High Court and Court of Appeal were dismissed. In an undated petition filed on 04/12/2019 he sought a re-hearing of his sentence, relying on the Supreme Court's decision in Francis Muruatetu Karioko. The State, through replying affidavit and submissions of prosecution counsel Ann Penny Gakumu, opposed the petition, arguing that section 297(2) prescribes a mandatory death sentence with no alternative, that the trial was fair, and that Muruatetu does not automatically benefit the petitioner. The court held that Muruatetu declared only the mandatory aspect of the death sentence unconstitutional, leaving the death penalty discretionary, and that its mitigating-factor guidelines apply to all capital offences, including robbery with violence, following William Okungu Kittiny v Republic. It rejected the State's submissions and considered the Sentencing Policy Guidelines objectives, the petitioner's youth at arrest, first-offender status, remorse, possible rehabilitation, the absence of injury to the victim, and the approximately 12 years already served. The petition was allowed: the death sentence was set aside and substituted with the period already served, and the petitioner was to be released forthwith unless lawfully held under a separate warrant.

Key legal issues

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01

Applicability of Muruatetu to attempted robbery with violence

Holding

The Muruatetu guidelines apply to all capital offences carrying the mandatory death sentence, including section 297(2) of the Penal Code.

Reasoning

The court relied on the Court of Appeal decision in William Okungu Kittiny v Republic, which held that Muruatetu broadly considered the constitutionality of the death sentence in general and that its findings apply mutatis mutandis to sections 296(2) and 297(2). The court rejected the State's argument that Muruatetu is confined to murder or does not benefit the petitioner.

p. 3
02

Entitlement to sentence re-hearing after exhausting appeals

Holding

Convicts sentenced before Muruatetu, despite exhausting appeals, are entitled to apply for sentence re-hearing.

Reasoning

The court held that the purpose of Muruatetu is to allow judicial officers to review whether the death penalty or life imprisonment was deserved in cases finalized before the decision, and rejected the State's contention that the petitioner does not benefit from it.

p. 3
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Appropriate sentence on re-hearing

Holding

Taking into account the petitioner's age, first-offender status, absence of injury to the victim, remorse, possible rehabilitation and about 12 years served, the death sentence is set aside and substituted with time served.

Reasoning

The court applied the Sentencing Policy Guidelines objectives and comparable resentencing decisions (Simon Kimani Maina, Joseph Kaberia Kainga, Martin Bahati Makoha), noting a 14-year starting point for robbery-with-violence resentencing, and found the petitioner had served approximately 12 years.

p. 4

Legal principles established

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  • The mandatory aspect of the death sentence was declared unconstitutional in Muruatetu; the death sentence remains legal but discretionary, and convicts whose cases were finalized before Muruatetu may apply for sentence re-hearing.
  • The Muruatetu mitigating-factor guidelines apply mutatis mutandis to robbery with violence and attempted robbery with violence under sections 296(2) and 297(2) of the Penal Code.

Court orders

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  1. 1.The death sentence is set aside and substituted with a sentence of the period already served
  2. 2.The petitioner to be released forthwith unless lawfully held under a separate warrant
Jurisdiction invoked
Constitutional petition for sentence re-hearing founded on the Supreme Court decision in Francis Muruatetu Karioko (Petition No. 15 of 2015)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Petitioner v Republic (sentence re-hearing petition)", Case Analysis (2020). Petition filed 04/12/2019 (Makueni High Court). Source: 

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