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Onyango v Republic (Criminal Petition E002 of 2022) [2022] KEHC 606 (KLR) (10 June 2022) (Ruling)
Neutral citation:
[2022] KEHC 606 (KLR)
Republic of Kenya
Criminal Petition E002 of 2022
WM Musyoka, J
June 10, 2022
Between
George Onyango
Petitioner
and
Republic
Respondent
Ruling
1.The undated petition filed herein on 22nd April 2022, seeks review of sentence. The petitioner had been convicted in CMCCRC No. 1602 of 2010, of robbery with violence, and was given the mandatory death penalty. He proffered an appeal in HCCRA No. 21 of 2011, and the death sentence was reduced to twenty years imprisonment.
2.The petition, no doubt, rides on the decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), where the court appeared to lay down a general principle that all mandatory sentences were unconstitutional, and to allow trial and appellate courts discretion to revisit cases where mandatory sentences had been imposed, with a view to revising or reviewing them.
3.The Supreme Court has since revisited the issue in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), and clarified that its decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) was of application only in murder cases, and not any other.
4.The offence that the petitioner was convicted of was robbery with violence, as defined in section 296(2) of the Penal Code, Cap 63, Laws of Kenya. The decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) is, therefore, of no application, and I have no discretion or jurisdiction to do that which the petitioner is inviting me to do.
5.Even if the matter were fall within Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), it would still be something that does not fall within my mandate to address. Once a person is convicted, and exhausts his appeals, the execution of the sentence of imprisonment is the responsibility of the Executive, through the prison system. If the convict feels that he has sufficiently reformed, and need has arisen for his sentence to be reviewed or reduced or substituted, that remains the mandate of the Executive, through remission or the exercise of the prerogative of mercy. Even the decongestion exercises that the courts often engage in, are doe at the request of the Executive, through the Ministry responsible for prisons and other rehabilitative institutions. The role of the court is to impose sentence, and can only review the save on through the legal structures provided by the law, of appeal and revision, and by way constitutional petition, where there is abuse or violation of rights.
6.In any event, the petitioner benefited from a review of sentence, when, on appeal, the Court of Appeal, albeit in exercise of a discretion it did not have, according to 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), set aside the death sentence imposed by the trial court and substituted it with a term of imprisonment. What the petitioner is inviting me to do has already been done by the Court of Appeal, and he should pursue administrative avenues for review of his sentence.
7.The undated petition filed on 22nd April 2020 is, therefore, incompetent, and I hereby strike it out. Let copies of these proceedings be availed to George Onyango and to the Director of Public Prosecutions.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10TH DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.George Onyango, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.2
