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Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR)

Authored By: Tracy Moraa Barongo

Kabarak University

Case Name:            Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR)

Petition No:            15&16 of 2015

Jurisdiction:          Supreme Court of Kenya

Date of decision:  6 July 2021

Case Outcome:     Dismissed

Advocates:

  1. Mr Ngatia for the 1st petitioner
  2. Mr.Kilukumi for the 2nd petitioner
  3. Mr,Nderitu (DPP) for the respondent

Facts of the case

The Petitioners herein Muruatetu and his accomplice Wilson Thirimbi were arraigned in the High Court for the offence of murder of a Nairobi businessman Lawrence Githinji.They were convicted and sentenced to life imprisonment as decreed under section 204 of the Penal Code.They appealed to the Court of Appeal against both the conviction and sentence,but the appeal was dismissed.They then filed two separate appeals in the instant court (Supreme Court) which had been consolidated.

 Issues for determination 

  1. Whether the mandatory nature of the death sentence denied a person the right to a fair trial with regard to mitigation.
  2. Whether imposing a death sentence which was final and irrevvocable ,without any individual having to mitigate violated their right to dignity
  3. Whether the mandatory nature of the death sentence under section 204 of the Penal Code violated article 50(2)(q) which provided for the right of a person to appeal to, or apply for review, by a higher court if convicted.
  4. Whether refusing or denying a convict facing the death sentence the right to be heard in mitigation when those facing lesser sentences were allowed to be heard in mitigation was unjustifiable discrimination and unfair.
  5. Whether the mandatory nature of the death sentence provided for under section 204 of the Penal Code was unconstitutional.
  6. What were the considerations that the Supreme Court should consider in deciding whether to impose a death sentence?
  7. Whether the sentencing policy guidelines regarding the mandatory death sentence were operative or in effect.
  8. What guidelines would apply with regard to mitigating factors in a re-hearing sentence for the conviction of a murder charge?
  9. Whether an indeterminate life sentence was unconstitutional.
  10. Whether the Supreme Court could declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission.
  11. Whether the Supreme Court could fix a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment.
  12. Whether any remedies would accrue to the petitioners where the mandatory death sentence was declared unconstitutional.

Law

National Laws:

  • Constitution of Kenya (2010)Article 1(1)(3) 2(4)(6); 19(3)(a); 20(1)(2);25(c); 26(1);27(1); 28; 29; 50(1)(2)(q); 51; 133; 159(1); 160 (1); 201(1)
  • Criminal Procedure Code (cap 75) ,Section 216, 261,329
  •  Penal Code (cap 63) Section 25(3),40,60,203,204,296(2),297(2)
  • Prisons Act (cap 90)Section 46 Chapter 90
  • Sexual Offenses Act (cap 63A) 

Regional Laws: 

  • Constitution of Uganda,Article 121
  • Criminal Justice Act,2003

International laws:

    • European Convention on Human Rights,1950,Article 3
    • International Covenant on Civil and Political Rights (ICCPR), 1966,  articles 14, 26
    • Universal Declaration of Human Rights (UDHR), 1948  article 10

 

Legal Arguments

Petitioner’s Arguments

The petitioner’s case presented before the Supreme Court by Mr.Ngatia for the 1st petitioner and Mr,Kilukimi for the 2nd petitioner was that the mandatory death sentence penalty imposed upon them and commutation of that sentence was unconstitutional and therefore null and void. They contended that the mandatory death penalty under section 204 of the Penal Code did not only jettisoned the discretion of the trial court forcing it to hand down a sentence pre-determined by the legislature, thus fouling the doctrine of separation of powers but also violated the convict’s right to a fair trial enshrined in article 50(2) of the constitution.

The mandatory death penalty denied the trial judge discretion in sentencing.They further contended that article 50(2) of the Constitution entitled any person who had undergone a criminal trial to appeal or seek review from a higher court.That included a second appeal.However section 261 of the Criminal Procedure Code limited second appeals to convictions only,if not set aside by the appellate court.

Respondent’s Arguments

Relying on the state’s written submissions dated February 26,2016,Mr Nderitu for the Director of Public Prosecution (DPP),the respondent submitted that  the right to life is not absolute as its clear from article 26 or the Constitution.Under the Penal Code the death penalty is lawful,though not the only sentence.He however conceded with counsel for the petitioners that sentencing is a judicial function.As such under the doctrine of separation of powers,the Legislature ought not encroach upon territory that constitutionally belongs to the Judiciary.

Counsel for the respondent urged the court to be persuaded by the recent High Court decision in Joseph Kaberia Kahinga and others v The Attorney General,Constitutional Petition No 680 of 2010(2016)KLR which determined that it would amount to violation of accused persons’ right to fair trial as provided under article 50(2) of the Constitution if the court fails to receive and consider mitigating factors and other statutory and policy pre-sentencing requirements.

In conclusion on that point,Mr.Nderitu once again concurred with the petitioners counsel that the matter be referred back to the High Court for resentencing and urged the court to set the timelines for that hearing.

Mr.Nderitu dismissed the claim for damages as baseless since the petitioners hadn’t challenged their conviction by the High Court.He urged the award for damages is a civil claim that demands a separate and distinct hearing.

Judgement

  1. On the first grounds,the court held that any person facing the death sentence deserved to be heard in mitigation because of the finality of the sentence. 
  2. The second ground,the court found that the sentence violated the convict’s right to dignity since Article 28 of the Constitution provides that every person has the inherent dignity and the right to have that dignity protected.Therefore it is for the court to ensure that all persons enjoyed the right to dignity. Failing to allow a judge discretion to take into consideration the convicts’ mitigating circumstances,the diverse character of the convicts,and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undierentiated mass, violated their right to dignity.
  3. Section 204 violated article 50(2)(q) of the Constitution as convicts under it were denied the right to have their sentence reviewed by a higher court .Their appeal was in essence limited to conviction only. There was no opportunity for a reviewing higher court to consider whether the death sentence was an appropriate punishment in the circumstances of the particular offense or offender.The right to justice was also fettered
  4. Article 27 of the Constitution provides for equality and freedom from discrimination and that every person was equal before the law and had the right to equal protection and equal benefit of the law.Refusing or denying a convict facing death sentence an opportunity to be heard in mitigation when those facing lesser sentences were allowed to be heard in mitigation was unjustifiable discrimination and unfair
  5. Section 204 of the Penal Code deprived the court of their legitimate jurisdiction to exercise discretion in a matter of life and death.Such law could be regarded as harsh,unjust and unfair.The mandatory nature or the death sentence was declared unconstitutional.It failed to conform to the tenets of fair trial that accrued to persons under article 25 of the Constitution.
  6. In the absence of law reform or the reversing of the decisions in Joseph Njuguna Mwaura and others v Republic,it was held that the court must impose dethat sentenc in respect to capital offences in accrodance with the law
  7. The sentencing Policy Guidelines published by the Judiciary of Kenya in 2016,are advisory and not mandatory aimed at promoting consistency and transparency in sentencing hearings and also promoting public understanding of the sentencing process.It was therefore the duty of the court,prosecutor and defense counsel to keep abreast with the guideline judgments pronounced and inform the court of existing guideline judgments on the issue before it respectively.
  8. Guidelines with regard to mitigating factors applicable in a re-hearing sentence for the conviction of a murder charge are:age of the offender,being a first offender,whether the offender pleaded guilty,character and record of the offender,commission of the offender in response to gender-related violence,remorsefulness of the offender,possibility of reform and social re-adaption of the offender,any other factor that the court considered relevant.
  9. On the matter of Constitutionality of indeterminate life sentence,the petitioner’s had not argued sufficiently and illustrated the particulars of why the indeterminate life sentence should be declared unconstitutional.The submissions made had not canvassed the issue to the courts satisfaction.Consequently a determination on it could not be made.
  10. The court could not delve into the issue of unconstitutionality of Section 46 of the Prisons Act because none of the primary parties to the dispute had raised it.The issue had also not been properly canvassed at the High Court and Court of Appeal.Therefore,the Supreme Court could not assume jurisdiction and address issues that had not gone through the hierarchy of courts.
  11. On the ground’s whether the Supreme Court could fix a definite number of years of imprisonment,the provisions enshrined under article 51 of the Constitution were considered.It was clear from the provisions that it was the legislature and not judiciary that was tasked with providing a legal framework for the rights and treatment of convicted persons.
  12. It was held that the appropriate remedy for the petitioners in the instant case was to remit the matter to the High Court for sentencing.It was prudent for the same court that heard the instant matter to consider and evaluate mitigating submissions and determine the appropriate sentence befitting the offence committed by petitioners.

Conclusion

With regards to the claims of the petitioners case,the court made the orders that:

  1. The mandatory nature of the death sentence as provided for under section 204 of the Penal Code was declared unconstitutional.For the avoidance of doubt the order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
  2. The matter was hereby remitted to the High Court for re-hearing on sentence only on priority basis and in conformity with the judgement.
  3. The Attorney General and Director of Public Prosecution and other relevant agencies prepare detailed professional review setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein.
  4. Placement of this judgement before the speakers of the National Assembly and Senate,the Attorney General,Kenya Law Report Commission attended with a signal of the utmost urgency for any necessary amendments,formulation and enactment of statute law to give effect to the judgment on the mandatory nature of death sentence and the parameters of what ought to constitute life imprisonment.

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