Peter Kaberu Mugo & Francis Maingi Mwaura v Director of Public Prosecutions [2019] KEHC 7114 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

PETITION NO.  5 OF 2018

PETER KABERU MUGO.....................................1ST PETITIONER

FRANCIS MAINGI MWAURA...........................2ND PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS..........RESPONDENT

JUDGMENT

1. The petitioners were adjudged guilty of robbery with violence contrary to section 296 (2) of the Penal Code. They were sentenced to suffer death.

2. Their trial was conducted by G. Mwaura, the learned Principal Magistrate in Murang’a Criminal Case Number 704 of 2004.

3. The consolidated appeals to the High Court at Nyeri in Criminal Appeals Numbers 67 and 69 of 2005 were dismissed by Kasango J and Makhandia J on 7th May 2008.

4. Their final appeal to the Court of Appeal at Nyeri in Criminal Appeal Number 72 of 2008 was equally dismissed.

5. The particulars of the charge and facts of the case are well captured in the Court of Appeal judgment. From the nature of the present petition, I see no reason to regurgitate them.

6. This is not a fresh appeal. It is a petition for re-sentencing following the directions by the Supreme Court in Francis Karioko Muruatetu & another v Republic, Consolidated Petitions Nos. 15 & 16 of 2015 [2017] eKLR. The court declared that the death sentence has not been outlawed; but it is no longer mandatory.  The learned judges held-

“The mandatorynature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional.  For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26 (3) of the Constitution.” [Emphasis added]

7. The Supreme Court then gave the following directions-

“[111] It is prudent for the same Court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners. For the avoidance of doubt, the sentencing re-hearing we have allowed, applies only for the two petitioners herein. In the meantime, existing or intending Petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General is directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which is similar to that of the petitioners in this case.”

8. The Supreme Court further directed the Attorney General, the Director of Public Prosecutions and other relevant agencies to prepare a detailed professional review with a view to setting up a framework to deal with sentence re-hearing. A report was to be submitted within 12 months of the judgment (now past).

9. The High Court has jurisdiction to re-sentence the petitioners notwithstanding the lack of the framework by those government agencies. See William Okungu Kittiny v Republic,Court of Appeal at Kisumu, Criminal Appeal 56 of 2013 (2018) eKLR, Michael Kathewa Laichena & Another v Republic, High Court, Meru, Petition 19 of 2017 [2018] eKLR.

10. The original sentence of death for the petitioners has since been commuted to life imprisonment.

11. The learned Prosecution Counsel, Ms. Gichuru, left the matter of re-sentencing to the discretion of the court.

12. I am alive that both petitioners were granted a full opportunity to mitigate in the lower court. The 1st petitioner (who was the 2nd accused) said: “I wish to say that I was defeated [sic] because I do not know how to offer a defence. I have children who rely on me”. The 2nd petitioner (who was the 1st accused) only said that he “did not commit the offence.”

13. The petitioners have been in custody since 4th May 2004 when they took plea. They now plead for leniency. They said they have reformed and learnt useful trades in prison including carpentry and upholstery. The 1st petitioner tendered a positive recommendation from the Officer in Charge Murang’a Prison dated 28th June 2018.

14. I have considered the original mitigation and the fresh clamour for clemency. The petitioners were first offenders but they engaged in an orgy of violence during the robbery. Robbery with violence is a serious felony that still attracts the sentence of death.

15. Considering the extenuating and aggravating factors; the period spent in pre-trial and post-sentence custody, I re-sentence each petitioner to 20 years’ imprisonment. For the avoidance of doubt, the sentences shall run from 3rd March 2005, the date of their original conviction.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 4th day of June 2019.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:-

Both petitioners.

Ms. R. Gichuru for the Republic instructed by the Office of the Director of Public Prosecutions.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.