Michael v Republic [2022] KEHC 15389 (KLR)

Michael v Republic (Petition E038 of 2021) [2022] KEHC 15389 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15389 (KLR)

Republic of Kenya

In the High Court at Migori

Petition E038 of 2021

RPV Wendoh, J

November 15, 2022

Between

James Nyamohanga Michael

Applicant

and

Republic

Respondent

Judgment

1. James Nyamohanga Michael, has brought this petition pursuant to Articles 19,21,22,23,25 (c ) 27 (1) (2) and (4), 50 (2), 159,160 and 165 (3) of the Constitution and Section 333 (2) of the Criminal Procedure Code.

2. His prayer is that the court do review his sentence. He filed submissions in support of the petition in which he contends that he is aged thirty five (35) years; that this court has jurisdiction to review the sentence; that he has aged parents who need his support; that he has been rehabilitated. Lastly, that the court should take into account the period he spent in remand as provided under Section 333 (2) of the Criminal Procedure Code.

3. Mr. Omooria, Prosecution Counsel opposed the petition on grounds that the petitioner had filed Kisumu Criminal Appeal 141 of 2018 which he later withdrew to pave way for this petition based on the case of Francis Muruatetu Karioko and another =vs= Republic Pet 142 15 of 2015. Counsel urged that the petitioner has not produced anything in evidence to support the fact that he has children and aged parents to care for or that he has skills acquired while in prison; That the death sentence was already been commuted to life imprisonment and in any case the circumstance of the offence, whereby he murdered his wife on suspicion of infidelity were uncalled for. He urged the court to dismiss the petition.

4In Francis Kariokos’ case (supra), the Supreme Court did not declare the death sentence unconstitutional. However, the court declared the ‘mandatory death sentence’ unconstitutional because it took away a judge’s discretion to sentence an accused person. In the present case, the court takes into account the circumstances under which the deceased met her death. The petitioner murdered his wife in cold blood based on suspicion that she had a love affair. The petitioner inflicted six (6) cut wounds on the deceased’s head, meaning he wanted her dead. The circumstances of the offence were aggravated call for a severe and deterrent sentence.

5. In view of the Muruatetu case, that the court has discretion to sentence to any other sentence other than death, I hereby set aside the death sentence imposed by J. Mrima. I have considered the period of about four (4) years that accused was in remand. I hereby sentence him to serve forty (40) years imprisonment from the date of sentence on 17/2/2017.

DATED, SIGNED AND DELIVERED ON THE 15TH NOVEMBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama, for the State.The appellant virtual .Evelyne Nyauke – Court Assistant.