Steve Biko Odira v State

(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. 4. He also submitted that death sentence contravenes section 216 and 329 of the Criminal Procedure Codes on mitigation and the values of sentencing as in the sentence. Sentencing Policy Guidelines 2023 and that the main objectives of punishment as stipulated in the Sentencing Policy Guideline which are rehabilitation and deterrence have been achieved as he has been in custody for the last 20 years Further that he was a first offender and he is remorseful. He told this court that he was a first offender and he is genuinely remorseful and plead with this court for a second chance. He submitted that this court has jurisdiction to hear this application under the provisions Article 165(3) of the Constitution of Kenya 2010 and the High Court Practice and Procedure Rules [2022] lastly that the respondent will not be prejudiced if the orders sought are granted. 5. The respondent in response to the application dated 6th November 2024 opposed the application on the grounds that the application was frivolous, vexatious and an abuse of the court process. That the application is an appeal on sentence cleverly disguised as an application for resentencing, the court lacks jurisdiction to alter the sentence by the Court of Appeal and that the death sentence is still a legal sentence under the provisions of section 296(2) of the Penal Code. That the issue of resentencing is mandatory death sentences as guided by the Supreme Court in Muruatetu decisions is only applicable in murder cases and that application is in bad faith and not in the interest of justice. Analysis and Determination 6. I have considered the application, the reply and the submissions by the applicant. It is trite law that the court has to consider the following factors in resentencing proceedings on offender: i. age of the offender ii. whether he is a repeat offender iii. whether the offender pleaded guilty iv. character of the offender v. commission of the offence in respect to gender-based violence vi. the manner in which the offence was committed on the victim vii. effect of the offence on the victim viii. whether the offender is remorseful. ix. the possibility of reform and social re adaptation of the offender based on the prison and social inquiry reports 5. The objectives of sentencing are retribution, correction, restorative Justice. 6. The question before this court therefore is whether the applicant is deserving of a review of his sentence. The respondents submitted that death sentence is still constitutional. This is true save that as was held in the said Ramadhan case mandatory death sentence is what is unconstitutional. 7. The applicant was sentenced to mandatory death sentence and thus a sentencing re-hearing was necessary and the court is duty bound to consider the same upon appropriate applications being made in that regard in line with the judiciary sentencing guidelines. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19781/eng@2025-06-26 2

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8. In addition to this the probation department submitted a Pre- Sentence Review Report which captured the views of the victim, his family members and the members of the community. The victim in count 2 states that she has forgiven him and the community members state that if he has indeed reformed, he should be allowed back to the community. In addition to this he submits that during the years spent in prison he has not been idle but has been undertaking courses which are evidenced by the attached copies of the certificates submitted to the court. The appellant has also been promoted to be a trustee in prison. 10. In regard to his safety if he goes back the retired chief of his community pointed out that they have a culture of welcoming back long-term prisoners and that the applicant will not be an exception, The community at large is receptive of him and hopeful that he has reformed during the period he has been in prison. The Pre-sentence Review Report states that the accused based on the assessment stands a better chance of a successful reintegration back to the community if given a chance. 10. There is also there is a brief Report submitted by the Officer in Charge of Nyeri maximum prison Charles M Manzi. The report states that the applicant has been in prison for the past 20 years since 28/4/2004 and has received various certificates whose copies are attached to the application. In addition to this the officer reports that the applicant has maintained a clean record and discipline and that he is an appointed trustee of the prisoners in the facility. 11. I have considered the nature of the offence, mitigation, the sentence meted out by the trial, the views of the victims and the community in the Pre-sentence Report and all the other necessary factors. The applicant was sentenced by the trial court on 7.12.2005 he has thus served 20 years imprisonment to date. The sentence was before the Ramadhan case were decided. The applicant has shown remorse and that he has reformed in prison. This is evidenced by the numerous certificates of good conduct from prison authorities. I proceed to re-sentence him on count 1 to 30 years imprisonment instead of the death sentence meted out by the lower court. I will not interfere with the sentence in count 2 which is 10 years as it is not subject to resentence save that I order that the two sentences to run concurrently from 11.2.2005 when the applicant was first remanded till completion. 12. It is so ordered. DATED, SIGNED AND DELIVERED ON 26TH JUNE, 2025. T. A. ODERA JUDGE In the presence of: Applicant. Mr. Koima for the State. Mr. Kipchirchir - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19781/eng@2025-06-26 3

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