Ruto v Republic [2022] KEHC 14065 (KLR)

Ruto v Republic (Miscellaneous Criminal Application 189 of 2018) [2022] KEHC 14065 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14065 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Application 189 of 2018

TM Matheka, J

October 19, 2022

Between

Simon Kibet Ruto

Applicant

and

Republic

Respondent

Ruling

1. Simon Kibet Ruto, the applicant, was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on the night of 10th and 11th December 2009, at Rift Valley Sports Club Nakuru, in Nakuru District within Rift Valley Province, jointly with another not before court, they murdered Catherine Wanjiku Kariuki.

2. After a full trial, the applicant was found guilty and convicted of Murder by Emukule J. The learned Judge found that the accused was liable to be sentenced to death. However reading from Article 26 of the Constitution 2010 and on the basis of the guarantee to the right to life of every person at Article 26, he exercised his discretion, and sentenced the applicant to 45 years imprisonment “without the option of appealable fact of release for the first 25 years.” The sentence was to commence from the date of arrest and detention of the applicant.

3. The applicant has filed an application for review of the forty five (45) year sentence. He filed submissions together with his application.

4. The grounds for the application are that he has already served eleven (11) years of the forty-five (45) years sentence, and that has already reformed. In addition, he reiterates his mitigation, that he is a father of two children, whose mother is now incapable of taking care of because she had an accident in 2015, and is jobless.

5. At the hearing of the application the applicant reminded the court that he was arrested on 23rd March, 2010. He urged the court to consider that he had indeed reformed and to reduce his forty-five (45) year imprisonment sentence.

6. Ms. Murunga for the state on her part urged the court to also consider that the victim was an unarmed lady, a mother of two (2) whom the applicant strangled to death.

7. In his rejoinder the applicant pleaded with the court to assist him saying; - “Nakubali mimi ni mkosaji, najutia. Nimejirudia. Naona makosa yangu. Naomba korti inisaidie.”

8. The only issue then is whether the applicant can benefit from the Supreme court decision in Francis Karioko Muruatetu where the mandatory nature of the death sentence was declared unconstitutional.

9. From the outset, that decision provided persons who had been given the mandatory death sentence an opportunity for re-sentencing. The applicant does not fall into that category because the trial judge, the Hon. Justice Emukule did not sentence him to death, but gave him a sentence of imprisonment.

10. In addition, the learned judge put a stay on any appeal by the applicant in the first twenty five (25) years of his forty five (45) year term of imprisonment. That caveat cannot be removed by this court as it has the same jurisdiction as the court that sentenced him. In addition, the applicant has only served twelve (12) years. This court cannot review the sentence. His refuge lies in the Court of Appeal. This is the import of Article 165 of the Constitution which gives the High Court supervisory powers over the subordinate courts.“(6)The High Court has supervisory jurisdiction over the Subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

11. It emerges therefore that the application for review of the applicant's sentence by this court is not tenable and the same is declined.

12. The applicant is not left without recourse. He can reinstate his appeal at the Court of Appeal.

13. The application is refused for the reasons hereinabove.

14. Right of Appeal 14 days.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 19TH OCTOBER, 2022. MUMBUA T. MATHEKAJUDGEIn the presence of:Court Assistant: JenifferApplicant Present at Eldoret GK Prison