Njuguna v Director of Public Prosecutions [2022] KEHC 13760 (KLR)

Njuguna v Director of Public Prosecutions (Criminal Petition 42 of 2019) [2022] KEHC 13760 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13760 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Petition 42 of 2019

WM Musyoka, J

October 7, 2022

Between

Daniel Njihia Njuguna

Applicant

and

Director of Public Prosecutions

Respondent

Ruling

1. The petitioner herein has lodged the petition herein, which is undated, but filed April 1, 2019, simultaneously, with a motion, seeking review of his sentence of death. He had been convicted in Vihiga PMCCRC No 388 of 1997, and sentenced to death. His appeals to the High Court in Nairobi HCCRA No 1157 of 1998 and the Court of Appeal in CRA No 112 of 2004 were dismissed.

2. From his written submissions, he is seeking review or revision of sentence based on Francis Karioko Muruatetu & another vs Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), which appeared to have had granted discretion to the courts to consider sentences other than the mandatory sentence prescribed by the statutes creating the offences that are the subject of the charges facing the accused persons.

3. The petitioner filed written submissions, as indicated above, which he highlighted on December 11, 2019. I called for a pre-sentencing report by the probation office. One was placed on record on March 9, 2021. The matter was place before F Amin J on July 12, 2021, who reserved it for ruling on October 4, 2021. F Amin J has retired, and the file was handed over to me on June 16, 2022for the purpose of preparing a ruling.

4. In 2021, the Supreme Court, in Francis Karioko Muruatetu & another vs Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), clarified that the decision in Francis Karioko Muruatetu & another vs Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) was not meant for unversal application, as it was limited only to murder cases, for the offence created under section 203, as read with section 204, of the Penal Code, Cap 63, Laws of Kenya.

5. The petition herein faced a robbery with violence charge, contrary to section 297(2) of the Penal Code. The charge he faced, no doubt, was not murder, and therefore, Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) did not apply to it, by virtue of Francis Karioko Muruatetu & another vs Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ). I, therefore, do not have any jurisdiction to revise or review his sentence in the circumstances.

6. On the other issues raised, relating to the assault charge, the matter was before the High Court and Court of Appeal on appeal. Those issues should have been raised before those courts in the appeals for determination.

7. The petition is accordingly dismissed.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 7 TH DAY OF OCTOBER 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court AssistantDaniel Njihia Njuguna, the petitioner, in person.Ms. Kagai, instructed by the Director of Public Prosecutions, for the respondent.2