REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A PETITION NO. 6 OF 2018 [CONSOLIDATED WITH MISC. CRIM. APPL. NO. 29 OF 2019] SAMUEL MWAURA MUIRURI...........................1ST PETITIONER LAWRENCE MWANGI MUGO...........................2ND PETITIONER STEPHEN NYAMU KIOI......................................3RD PETITIONER VERSUS DIRECTOR OF PUBLIC PROSECUTIONS............RESPONDENT JUDGMENT 1. The three petitioners were adjudged guilty of robbery with violence contrary to section 296 (2) of the Penal Code and rape contrary to section 140 of the code. 2. They were all sentenced to suffer death for the robbery; and, to various terms of imprisonment and strokes of the cane for the rape. 3. Their trial was conducted by Nyaga Njage, the learned Senior Resident Magistrate in Murang’a Criminal Case Number 1053 of 1995. 4. The consolidated appeals to the High Court at Nyeri in Criminal Appeals Numbers 135, 136 and 137 of 1998 were dismissed by Juma J and Mulwa J on 6th June 2000. 5. Their final appeal to the Court of Appeal at Nyeri in Consolidated Criminal Appeals Numbers 117, 131 & 133 of 2008 were equally dismissed on 10th May 2002. 6. The particulars of the charge and facts of the case are well captured in the Court of Appeal judgment. From the nature of the present petition, I see no reason to repeat them. 7. The 1st and 2nd petitioners lodged Petition 6 of 2018 on 16th March 2018. The 3rd petitioner subsequently filed Miscellaneous Criminal Application 29 of 2019. By then, the earlier petition had been heard but judgment had not been delivered. As the suits emanate from the same criminal trial, I directed the latter application be consolidated with the earlier petition. I have now also heard the 3 rd petitioner. 8. This is not a fresh appeal. It is a petition for re-sentencing following the directions by the Supreme Court in Francis Karioko Muruatetu & another v Republic, Consolidated Petitions Nos. 15 & 16 of 2015 [2017] eKLR. The court declared that the death sentence has not been outlawed; but it is no longer mandatory. The learned judges held- “The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26 (3) of the Constitution.” [Emphasis added] 9. The Supreme Court then gave the following directions- “[111] It is prudent for the same Court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners. For the avoidance of doubt, the sentencing re-hearing we have allowed, applies only for the two petitioners herein. In the meantime, existing or intending Petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General is
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directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which is similar to that of the petitioners in this case.” 10. The Supreme Court further directed the Attorney General, the Director of Public Prosecutions and other relevant agencies to prepare a detailed professional review with a view to setting up a framework to deal with sentence re-hearing. A report was to be submitted within 12 months of the judgment (now past). 11. The High Court has jurisdiction to re-sentence the petitioners notwithstanding the lack of the framework by those government agencies. See William Okungu Kittiny v Republic, Court of Appeal at Kisumu, Criminal Appeal 56 of 2013 (2018) eKLR, Michael Kathewa Laichena & Another v Republic, High Court, Meru, Petition 19 of 2017 [2018] eKLR. 12. The original sentence of death for the petitioners has since been commuted to life imprisonment by His Excellency the President. 13. The learned Prosecution Counsel left the matter of re-sentencing to the discretion of the court. 14. I am alive that the petitioners were granted a full opportunity to mitigate in the lower court. The 1st petitioner (who was the 6th accused) said: “I ask for leniency; I am innocent”. The 2nd petitioner (who was the 4th accused) pleaded for leniency. The 3rd petitioner (who was the 2nd accused) also prayed for leniency and added “let the court consider the period I have been in remand. I was arrested in 1994 and charged in 1995”. 15. The lower court took into account that all the three petitioners were first offenders. The petitioners now plead for leniency. They said they have reformed and learnt useful trades in prison including carpentry and upholstery. The three petitioners tendered positive recommendations from the Officer in Charge Kamiti Main Prison dated 28 th November 2018 and 17th July 2019 respectively. The 3rd petitioner is hypertensive and requires medical care. 16. I have considered the original mitigation and the fresh clamour for clemency. The petitioners were first offenders but they engaged in an orgy of violence during the robbery. They also gang raped two daughters of MWK (PW1) [particulars withheld]. Robbery with violence is a serious felony that still attracts the sentence of death. 17. I am well guided by the recent decision of the Court of Appeal in Mukhwana Lingodo v Republic, Eldoret Criminal Appeal No. 29 of 2017 [2019] eKLR where the Court held: As regards the sentence, the appellant was sentenced to death. Although this court has in numerous decisions applied to robbery with violence cases the decision for the Supreme Court in Francis Karioko Muruatetu v Republic [2017] eKLR that death sentence is not mandatory, the death sentence is deserved in the circumstances of this case. The appellant not only robbed the deceased of his motor vehicle and stole his money but also killed him in an extremely cruel manner. 18. I have considered the level of violence, cruelty and multiple gang rapes of two young and innocent women by the petitioners. They will bear the scars for life. I thus find that the sentence of death in this case is well deserved. I decline to disturb it. As stated earlier, the sentence has since been commuted by His Excellency the President to life imprisonment. 19. The upshot is that the consolidated petitions are hereby dismissed. It is so ordered. DATED, SIGNED and DELIVERED at MURANG’A this 8th day of October 2019. KANYI KIMONDO JUDGE Judgment read in open court in the presence of:The three petitioners (in person) Ms. Keya for the Republic instructed by the Office of the Director of Public Prosecutions. Ms. Elizabeth, Court Clerks.
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