Stephen Mwiti v Republic [2020] KEHC 2045 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

PEITITION NO. E001 OF 2020

STEPHEN MWITI................................................................APPLICANT

VERSUS

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

R U L I N G

1. STEPHEN MWITI (the applicant”)was charged and convicted for the murder on of Peter Gitonga on 5/10/2011 at Antambocio Location in Igembe South District within Meru County contrary to section 203 as read with Section 204 of the Penal Code. He appealed against that decision in Court of Appeal vide Nyeri in Criminal Appeal No. 41 of 2016. The appeal was dismissed and the sentence upheld.

2. He therefore filed this petition seeking resentencing under the guidelines of the Supreme Court’s decision in Francis Muruatetu v Republic (2017) eklr.

3. In Francis Muruatetu Case (supra), the Supreme Court of Kenya held that the mandatory nature of the death sentence was unconstitutional as it denied the Court its discretion in sentencing. The Court proceeded to set out the criteria or the principles that should guide a Court in sentencing.

4. Some of the considerations are age of the offender, being a first offender, whether the offender pleaded guilty, the character and record of the offender, commission of the offence in response to gender-based violence, remorsefulness of the offender, the possibility of reform and social re-adaptation of the offender and any other factor that the Court considers relevant.

5. The petitioner in this case avers that he has reformed having undergone rehabilitation programmes in prison for the last ten (10) years. In his mitigation, he stated that he has undergone religious studies while in custody. He prayed to be released so that he can continue to spread the gospel in the community.

6. The respondent asked the court to take into consideration the gravity of the offence and the way it was committed. It opined that the applicant has not reconciled with the victims. They confirmed that the petitioner has no previous records but opined that a life would be considerable sentence in the circumstances.

7. During the trial, the prosecution proved that the petitioner had stabbed the deceased on the left side of the chest. The Court of Appeal held that the stabbing was wholly unprovoked and its aim was to kill or cause grievous harm.

8. I have taken into consideration the aggravating and mitigating factors raised by the petitioner and the respondent. I have also considered the period the petitioner has spent in custody. I have also factored decisions in similar cases.

9. In view of the foregoing, I set aside the death sentence and re-sentence the petitioner to 25 years imprisonment. The time shall begin to run from the date of his first conviction.

It is so ordered.

DATEDand DELIVEREDat Meru this 29th day of October, 2020.

A. MABEYA, FCI arb

JUDGE