Cheserek v Republic [2022] KEHC 10022 (KLR)

Cheserek v Republic (Criminal Petition E072 of 2021) [2022] KEHC 10022 (KLR) (20 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10022 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Petition E072 of 2021

RN Nyakundi, J

July 20, 2022

Between

Samuel Kiprotich Cheserek

Petitioner

and

Republic

Respondent

Ruling

1. Vide a petition a petition dated 18th November 2121, the Petitioner herein moved this court seeking for review of sentence vide sentence rehearing and further for leave to probationary/non-custodial sentence as the court shall deem appropriate.

2. The brief facts of this matter is that the Petitioner was charged with the offense of robbery with violence contrary to section 296(2) in Eldoret Chief Magistrate’s court criminal case no 1813 of 1999 wherein he was convicted and sentenced death as then provided for in law. Being dissatisfied with the conviction and sentence, he filed an appeal to the High Court being H.C.CR Appeal no 93 of 2001 which dismissed his appeal. He then moved to the Court of Appeal vide Criminal Appeal no 265 of 2003 which appeal was also dismissed.

3. He has now filed the instant petition seeking for resentencing claiming that has taken full advantage of the rehabilitative programmes offered in the correctional facility as evidenced by the annexed documents.

4. The Petitioner has urged the court to consider the 24 years period he has served in custody in accordance with section 333(2) of the Criminal Procedure Code and Article 50(2) (p) (q) of the Constitution. The Petitioner also relied on the case of Joseph Kaberia and 11 others Petition No. 618 of 2000 and William Okungu Kitting v Republic [2018] eKLR

Determination 5. The only issue for determination is whether the Petitioner should be resentenced.

6. I have carefully perused the trial court file and particularly the Probation Report dated 20th August 2009 where the probation officer after interviewing the petitioner’s neighbours and the villagers in general was of the view that he was welcomed back to the society as he was a good man despite the serious offence he committed. I have also noted that at the time of the committal of the offence, the Petitioner was aged 24 years and is remorseful and has attributed his mistake to peer pressure at the time.

7. It is also worth noting that life was lost as a result of the petitioner’s actions and I don’t think the court should turn a blind on that position.

8. In meting out sentences on accused persons, the courts are always guided by principles of deterrence and rehabilitation or reformation of the offender. According to The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary, the sentence imposed must meet the following objectives in totality;i.Retribution: To punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.iii.Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.iv.Restorative Justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.v.Community protection: To protect the community by incapacitating the offender.vi.Denunciation: To communicate the community’s condemnation of the criminal conduct.

9. The Court of Appeal in the case of Thomas Mwambu Wenyi v Republic [2017] eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira v State of Mahareshtra at paragraph 70-71 held the following on sentencing:-“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.

10. A perusal of the documents annexed to the petition shows that the Petitioner has undergone several rehabilitative programs. Among those documents is a letter dated 22nd October 2020 from R. Powon (SP), the officer in charge of Eldoret Main Prison which states that the Applicant is a reformed person and given a second chance he is a productive member of the society

11. Based on the foregoing, I am persuaded that as much as there is need for a deterrent sentence, a reformed accused person should be given a second chance at life to redeem themselves and live a purposeful life.

12. In the circumstances and being guided by the principles stated in Alister Anthony Pereira v State of Mahareshtra (supra), I hereby set aside the life sentence imposed on the petitioner through commutation by the president and substitute it with a prison term of 30 years with effect from 24th August 1999. This condition on commencement takes into account Section 333(2) of the Criminal Procedure Code.Orders accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 20TH DAY OF JULY, 2022. R. NYAKUNDIJUDGEIn the presence of:Mr Mugun for the stateAppellant