[2019] KEHC 1911 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory imposition of the death sentence under section 296(2) of the Penal Code is unconstitutional. The applicant, having been sentenced to death without consideration of mitigation, is entitled to have the sentence set aside and the...
Source-derived case information.
- Citation
- [2019] KEHC 1911 (KLR)
- Parties
- Applicant: Abdirahaman Ali Ano; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 34 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Resentencing Application Post Appeal
- Outcome
- application allowed; death sentence set aside; matter remitted for resentencing
- Judges
- CM Kariuki
- Legal Topics
- Robbery With Violence, Death Sentence, Resentencing, Mitigation, Penal Code Section 296 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdirahaman Ali Ano
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Resentencing Application Post Appeal
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Muruatetu.
- 2 Whether the mandatory death sentence imposed under section 296(2) of the Penal Code should be set aside and the applicant given an opportunity for mitigation.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory imposition of the death sentence under section 296(2) of the Penal Code is unconstitutional. The applicant, having been sentenced to death without consideration of mitigation, is entitled to have the sentence set aside and the matter remitted for resentencing. The court emphasized that while the death sentence itself is not unconstitutional, it must only be imposed after the court has considered all relevant circumstances and mitigation. Accordingly, the death sentence imposed by the trial court was set aside, and the file was remitted to the trial court for resentencing after consideration of the...
Court Disposition
application allowed; death sentence set aside; matter remitted for resentencing
Orders
- The death sentence imposed by trial court in CRC No. 345 of 2011 Garissa is set aside.
- The file is remitted back for resentencing after consideration of accused’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. 34 OF 2019
ABDIRAHAMAN ALI ANO...........................................................APPLICANT
VERSUS
REPUBLIC....................................................................................RESPONDENT
RULING
1. The applicant was charged with an offence of robbery with violence contrary to section 296(2) of the Penal Code (Cap. 63 Laws of Kenya) in which he was found guilty, convicted and sentenced to death.
2. He appealed to the High Court vide Garissa HCCRA No. 6 of 2011 but after the hearing the appeal was dismissed.
3. He has now moved court via the window created by the Supreme Court case of Muruatetu which held that the mandatory aspect of the death sentence is unconstitutional.
4. He now seeks to be resentenced as the trial court held that the death sentence was mandatory. This does not mean after considering mitigation the trial court can still impose death sentence if circumstances so dictates. Death sentence is not unconstitutional and court can always impose it after considering the circumstances of the matter.
5. The prosecution does not oppose the application but proposes the mater be remitted back to the trial court for resentencing. Thus this court makes the following orders:-
(i) The death sentence imposed by trial court in CRCNo. 345 of 2011 Garissa is set aside.
(ii) The file is remitted back for resentencing after consideration of accused’s mitigation.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 28th DAY OF NOVEMBER, 2019.
.......................
C. KARIUKI
JUDGE