Isaiah Wangai Ngari v Republic [2021] KEHC 1201 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT KERUGOYA

CRIMINAL PETITION NO. 20 OF 2019

ISAIAH WANGAI NGARI....................................................................................PETITIONER

VERSUS

REPUBLIC..........................................................................................................RESPONDENT

JUDGMENT

1. The Petitioner was charged with the offence of Robbery with violence Contrary to Section (2) of the Penal Code and sentenced to death upon full hearing of the case.

His two appeals to the High Court and Court of Appeal vide Kerugoya High Court Appeal No. 29 of 2016 and Court of Appeal at Nyeri No. 37 of 2017 were heard and dismissed, thus the petitioner’s options for further appeal were exhausted.

2. This petition is based on Supreme Court decision in Francis Muruatetu Karioko, Petition No. 15 and 16 (Consolidated) (2017) eKLR rendered on the 14. 12. 2017.

The Supreme Court Muruatetu decision dealt with the offence of Murder Contrary to Section 203 of the Penal Codeand no other, whose penalty was declared unconstitutional – paragraph 69, and directed that the petitioners may apply for sentence – rehearing before the courts that sentenced them.

3. On the 6. 7.2021 the Supreme Court revisited its decision on Muruatetu to give clarity on the applicability of the decision and gave policy guidelines as follows: -

a. That the Muruatetu decision did not invalidate mandatory sentences of minimum sentenced in the Penal Code, the Sexual Offences Act or any other statute.

b. That the Muruatetu decision does not and is not directly applicable to sentences under Section 40 (3), treason, robbery with violence under Section 296 (2) and attempted robbery with violence – Section 297 (2) of the Penal Code.

4. The court therefore emphasized that the decision of Muruatetuand the guidelines under the 6. 7.2021 directions apply only in respect of sentence of Murder under Section 203 and 204 of the Penal Code.The offence of robbery with violence is thus excluded, and therefore not applicable.  For the foregoing, this petition is dismissed.

Dated and Signed this ........................day of.........................2021

J. N. MULWA

JUDGE

DATED AND DELIVERED AT KERUGOYA THIS 15TH DAY OF DECEMBER, 2021

R. MWONGO

JUDGE