[2021] KEHC 8442 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court considered both aggravating factors (use of firearms, gang involvement, amount stolen) and mitigating factors (youthfulness of the petitioner at the time of...
Source-derived case information.
- Citation
- [2021] KEHC 8442 (KLR)
- Parties
- Applicant: Abdallah Hassan Mwasanite; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 213 of 2019
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- life sentence set aside; petitioner resentenced to period already served and released unless otherwise lawfully held
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Sentencing, Robbery With Violence, Mitigating Factors, Aggravating Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdallah Hassan Mwasanite
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Resentencing Application / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and the time already served.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court considered both aggravating factors (use of firearms, gang involvement, amount stolen) and mitigating factors (youthfulness of the petitioner at the time of the offence, absence of physical injury to victims, remorse, and evidence of reform). The court noted that the petitioner had already served over 15 years in prison and determined that this period constituted adequate punishment for the offence. Accordingly, the life sentence was set aside and substituted with a sentence equivalent to the time already served, resulting in the...
Court Disposition
life sentence set aside; petitioner resentenced to period already served and released unless otherwise lawfully held
Orders
- The life sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to the period already served in prison.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
PETITION NO. 213 OF 2019
ABDALLAH HASSAN MWASANITE....................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS.......................................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein ABDALLAH HASSAN MWASANITE was
charged with the Offence of robbery with violence contrary to 296 (2) of the Penal Code.
2. The particulars of the offence were that:
“on the 10th day of August, 2005 at Maganyukulo filing station in Kwale District within Coast Province, jointly with others not before the Court while armed with dangerous weapons namely AK 47 rifle and pistols robbed SAIDI MWATSULUKA MWAKULO Kshs. 100,000/= and one Nokia mobile phone all valued at Kshs. 117,000/= and at or immediately before or immediately after threatened to shoot the said Saidi Mwatsuluka Mwakulo.
3. The Petitioner was convicted and sentenced to suffer death.
4. His appeal to both the High Court and Court of Appeal were dismissed
and conviction and sentence upheld. The sentence to suffer death was later commuted to life imprisonment.
5. The Petitioner is now in this court pursuant to the Supreme Court
decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLRin which the Supreme Court found the mandatory nature of death sentence to be unconstitutional.
6. When the matter came for resentencing, Ms. Moke, learned Counsel,
appeared for the State. Counsel submitted that the Petitioner was in company of 4 others and they were armed with a pistol and an AK-47 rifle which they used to threaten the victim into compliance in pursuance to the robbery. Counsel urged the court to consider the aggravating circumstances of the gang and the multiple guns. She prayed for a sentence of 20 years imprisonment including the time spent in custody prior to sentencing.
7. The Petitioner on his part submitted that he was only 20 years when
he committed the offence. That he has reformed and he is of good conduct. He submitted that nobody suffered injuries and the weapons were only used to scare the victims. He regrets the offence and strongly condemns the same. He prays this Court to consider giving him a light sentence and also consider the time he served in custody before he was sentenced. He was arrested on 7/11/2005 and sentenced on 25/7/2008.
8. I have considered the petition and the submissions. The Petitioner
committed robbery with violence. The Petitioner was in the company of four others who were armed with guns that are considered dangerous weapons. The petitioner however did not cause injury to any of the victims.
9. The aggravating factors in this case are that the Petitioner had a gun andwas seemingly in a gang. He took money and phone all amounting to Kshs. 117,000/=. However, no one was injured. The guns were used to scare the victims into compliance. The Petitioner was very young when he committed the crime; he claims to have reformed and is also remorseful.
10. InPaul Ouma Otieno v Republic [2018] eKLR,the convict was armed with an AK 47 rifle and a kitchen knife and robbed the complainant of cash Kshs. 450,000/= and 3 mobile phones, Majanja J substituted the death sentence with 20 years’ imprisonment commencing on the date of the sentence by the trial court
11. In Benson Ochieng & France Kibe v Republic [2018] eKLR, Joel Ngugi J. re-sentenced the Petitioners to 20 years imprisonment upon considering that the offence was aggravated by the use of multiple guns by an organized gang to commit armed robbery.
12. The Petitioner was arrested on 7/11/2005. He has now spent 15 years and 3 months in prison. I am satisfied that the Petitioner has adequately been punished for the crime that he committed, and that this Court should give the Petitioner a second chance for life in orderly society. I hereby set aside the life sentence imposed on the Petitioner and sentence him to the years which he has already spent in prison. The Petitioner is set at liberty unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 11TH DAY OF MARCH, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Mr. Fedha for DPP
Mr. Josephat Court Assistant