Sempere Dikir v Republic [2022] KEHC 2593 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

PETITION NO. 2 OF 2020

SEMPERE DIKIR.................................................................PETITIONER

VERSUS

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

JUDGEMENT

1. The petitioner was sentence to life imprisonment for the murder of the late James Nyangau Ouko. Pursuant to the ground breaking decision by the Supreme Court of Kenya in the case of Francis Muruateteu & another (2017) Eklrthe petitioner has sought to mitigate afresh and ask the court for a resentence.

2. The court directed the parties to file their respective submissions which they have complied and the court has perused the same.

3. The petitioner submitted that he has been in custody for the last 12 years and he has learned a bitter lesson. He said that the circumstances of the offence were brought about by a love triangle between him and the deceased. He said that he was provoked by the presence of the deceased in the home of PW2.

4. By virtue of this he lacked self-control and in a rage of hunger committed the offence. Otherwise he said that he had no past criminal record and that he has been rehabilitated well while in prison.

5. The applicant relied on the case of Francis Opondo v. Republic (2017) eKLR among others. He said that the period he has served while in custody be considered and be set free.

6. The learned state counsel opposed the petition arguing that a life was lost and by virtue of this the petitioner should not be set free as he has prayed. That setting him free shall not be in the interest of the community as well as the deceased family.

7. He submitted that the cases of murder have been so rampant that the only way to deter is to have people like the petitioner remain in prison.

8. The court has perused as stated above the record as well as the trial courts proceedings. It is apparent that the cause of the fight was the love triangle between the petitioner and the deceased over PW2. That is past history for now.

9. Does the petitioner deserve a second chance pursuant to his mitigation.? I think he deserves. This is for the reason that he did not have a previous criminal record. It appears that the deceased and the petitioner were both jostling over PW2 who doubled as their girlfriend. Unfortunately, as admitted by the petitioner in a fit of rage he inflicted injuries on the deceased which led to his death.

10. It is now accepted that the purpose of sentencing is to ensure retribution, deterrence, rehabilitation restoration and protection of the community by incapacitating the offender.

11. Taking the principles enunciated in the Muruatetu case i am satisfied that the petitioner be granted a second chance. He showed rehabilitation at least by exhibiting the certificates he has obtained from various religious organisations while in custody. At any rate even if he were to be incarcerated for life the deceased unfortunately would not be restored.

12. Consequently, this court sets asides the sentence of life imprisonment and sentence him to 22 years’ imprisonment from 20th April 2009.

Dated signed and delivered via video link at Nakuru this 3rd day of February 2022.

H K CHEMITEI.

JUDGE