Joseph Boit v Republic [2022] KEHC 2374 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

HIGH COURT CRIMINAL PETITION NO. 77 OF 2019

JOSEPH BOIT.............................PETITIONER

-VERSUS-

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

Coram:Hon. Justice R. Nyakundi

Mr Mugun for the state

RULING

The petitioner filed this petition seeking resentencing from the sentence of death that was issued by the High Court in Criminal Case no. 96 of 2003. The appellant appealed against the sentence and conviction in Criminal Appeal No. 10 of 2012. The appeal was dismissed and the conviction and sentence upheld.

The petition is based on the grounds that the petitioner was not accorded a fair trial in the matter of sentencing which contravened article 50(2)(q) of the constitution.

Article 50(2)(q) provides;

(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

The petitioner bases his petition on the grounds that he is a first offender and he has been in prison for 17 years. He is remorseful and has undergone spiritual and educational rehabilitation programmes and is ready and willing to be integrated back into society. He has attached certificates of the programmes he has attended and maintains that he was denied a fair trial due to the failure to consider mitigating circumstances.

Section 354(3) of the Criminal Procedure Code confers this court with powers relating to appeals as follows;

(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may—

(a) in an appeal from a conviction—

(i) reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or

(ii)alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or

(iii)with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;

I have evaluated the pleadings and authorities submitted by the petitioner and find no sufficient grounds for interfering with the sentence. The rehabilitation programmes and certificates that the petitioner has obtained and his remorse cannot overturn the mens rea of the offence that was committed. The mere brutal nature of the act and the trauma caused by the actions of the petitioner cannot be reversed by his remorsefulness or programmes he has undergone in prison.

There is a misconception that the death penalty has been outlawed by the Muruatetu case. It is important to clarify that the death sentence was not outlawed. In the original petition the ratio decidendi was summarized as follows;

69. Consequently, we find that Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.

We therefore reiterate that, this Court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.

In Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR the Supreme court issued guidelines on re-sentencing and upon considering the said guidelines I find no reason to interfere with the sentence.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF FEBRUARY, 2022.

..........................

R. NYAKUNDI

JUDGE

In the presence of:-

1. Mr Mugun

2. Petitioner