[2019] KEHC 3195 (KLR)
The court found that the mandatory death sentence imposed on the applicant for robbery with violence was unconstitutional in light of the Supreme Court's decision in Muruatetu. Since the State did not oppose the application for re-sentencing, and the Supreme Court had declared the mandatory aspect of the death...
Source-derived case information.
- Citation
- [2019] KEHC 3195 (KLR)
- Parties
- Applicant: Abdilatif Osman; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 4 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
- Outcome
- application for re-sentencing allowed; death sentence set aside; matter referred for re-sentencing
- Judges
- CM Kariuki
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Death Penalty, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdilatif Osman
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the mandatory death sentence imposed for robbery with violence under section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant is entitled to re-sentencing following the Supreme Court's decision.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the applicant for robbery with violence was unconstitutional in light of the Supreme Court's decision in Muruatetu. Since the State did not oppose the application for re-sentencing, and the Supreme Court had declared the mandatory aspect of the death penalty unconstitutional, the High Court set aside the death sentence and referred the matter back to the Magistrate's Court for re-sentencing after hearing the applicant's mitigation. The court emphasized the need for individualized sentencing and the consideration of mitigation in line with constitutional principles.
Court Disposition
application for re-sentencing allowed; death sentence set aside; matter referred for re-sentencing
Orders
- The death sentence made by the trial court in Criminal Case No. 7 of 2005 Wajir on 1/8/2006 is hereby set aside.
- The file is referred back to Wajir Law Courts for the Magistrate Court to re-sentence the applicant after hearing the applicant’s mitigation.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO 4 OF 2019
ABDILATIF OSMAN......................................................APPLICANT
VERSUS
REPUBLIC...................................................................RESPONDENT
RULING
1. The applicant was with others charged with offence of robbery with violence contrary to section 296(2) of the Penal Code. Particulars being that on 25/4/2005 at 9 pm while armed with knife robbed James Nderitu Khsh. 1,400/= and at the same time assaulted the same Nderitu.
2. He pleaded not guilty and was convicted of the offence in his mitigation he said that he prayed for court to look the case carefully.
3. They were mandatory sentenced to suffer death on 1/8/2006.
4. He lodged High Court Criminal Appeal No. 119 of 2006 in Meru which was dismissed subsequently he filed Court of Appeal No. 119, 123 and 124 of 2008 consolidated which was heard and also dismissed.
5. He has lodged instant application for re-sentencing. He relies on Supreme Court of Kenya Case No. 15 & 16 of 2015 – Muruatetu where court declared the mandatory aspect of the death sentence is unconstitutional. The State did not object to the re-sentencing.
6. The court having perused the above Supreme Court decision and take into account that the re-sentencing is not opposed by State, it is hereby ordered:
(1) The death sentence made by the trial court in Criminal Case No. 7 of 2005 Wajir on 1/8/2006 is hereby set aside.
(2) The file is referred back to Wajir Law Courts for the Magistrate Court to re-sentence the applicant after hearing the applicant’s mitigation.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 29TH DAY OF OCTOBER, 2019.
.......................
C. KARIUKI
JUDGE