Case ID:158645

Ngalu Kavita v Republic[2020] eKLR

Case Metadata

Case Number:

Criminal Miscellaneous Application 67 of 2019

Parties:

Ngalu Kavita v Republic

Date Delivered:

27 May 2020

Case Class:

Criminal

Court:

High Court at Garissa

Case Action:

Ruling

Judge(s):

Charles Mutungi Kariuki

Citation:

Ngalu Kavita v Republic[2020] eKLR

Court Division:

Criminal

County:

Garissa

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CRIMINAL MISC. APPLICATION NO. 67 OF 2019

NGALU KAVITA.....................APPLICANT

VERSUS

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

RULING

1. The applicant was convicted and sentenced to death in a charge of murder on 20/12/2018. He says that he never lodged an appeal to the court of appeal.

2. He has now moved this court for re-sentencing. The applicant relied on case of Supreme Court

Francis Karioko Muruatetu & Another =Vs= Republic [2017] eKLR.

3. The essence of the

Muruatetu

case was that death sentence is not illegal but only mandatory aspect which may make trial court not to consider mitigation as tendered. The Supreme Court in the

Muruatetu

case (Supra) held that although the mandatory death penalty having been declared unconstitutional, the death penalty still exists as the maximum sentence for murder under Section 203 and 204 of the Penal Code.

4. In the instant case the trial court was alive to the holding in the aforesaid

Muruateru case

which had been decided on 17/12/2017. This is apparent as the trial court considered mitigations thus held,

“I have considered that accused was a first offender, was in custody for 6 years and a sole breadwinner. However, the deceased (his wife) was defenseless. The attach was very vicious with her having been stabbed several times.”

Thus, the court found it would award a maximum sentence which is death.

5. The

Muruatetu case

did not outlaw death sentence but retained it as maximum sentence. The circumstances the award of death penalty by my brother

Dulu J

can only be challenged in the Court of Appeal.

6.

Thus, application lacks merit and is dismissed.

DATED, DELIVERED AND SIGNED AT GARISSA THIS 27

TH

DAY OF MAY, 2020.

C. KARIUKI

JUDGE