[2020] KEHC 4107 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The applicant, having been sentenced under the mandatory regime, is entitled to have his sentence revisited. The court found it has jurisdiction to entertain the...
Source-derived case information.
- Citation
- [2020] KEHC 4107 (KLR)
- Parties
- Applicant: Abdirahman Ali Sheikh; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 100 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- CM Kariuki
- Legal Topics
- Robbery With Violence, Death Sentence, Sentencing Guidelines, Constitutional Invalidity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdirahman Ali Sheikh
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Muruatetu decision.
- 2 Whether the applicant is entitled to resentencing in light of the Supreme Court's decision.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The applicant, having been sentenced under the mandatory regime, is entitled to have his sentence revisited. The court found it has jurisdiction to entertain the application and, with the State conceding, set aside the death sentence and referred the matter back to the trial court for resentencing, taking into account mitigation and the period already served in custody.
Court Disposition
application allowed
Orders
- The death sentence in Mandera Principal Magistrate’s Court Criminal Case No. 306 of 2011 is set aside.
- The matter is referred back to the Law Court Mandera for sentencing after considering mitigations and period Applicant has been in custody.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL MISC. APPL. NO. 100 OF 2019
ABDIRAHMAN ALI SHEIKH.................................................................................APPLICANT
VERSUS
REPUBLIC.............................................................................................................RESPONDENT
RULING
1. The Applicant was convicted and sentenced to suffer death for the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. Being dissatisfied with the above sentence he lodged HCCRA No. 4 of 2012 in High Court at Garissa which after full hearing was dismissed.
3. He never appealed again to the Court of Appeal.
4. He has now moved court under the authority of Muruatetu, Supreme Court Petition No. 15 of 2015 of 17/12/2017 which held that mandatory aspect of death sentence is unconstitutional.
5. On 9/12/2011 the trial court sentenced the Applicant to death stating that the same was the only sentence provided by the law then.
6. The aforesaid Muruatetu case has opened a new window of opportunity for the courts to revisit sentences which are rendered unconstitutional due to the mandatory aspect of the sentence since 17/12/2017.
7. Thus, the court is perfectly seized of the jurisdiction to entertain the instant application.
8. The State has conceded same and agrees with Applicant’s proposal that he can be taken to trial court at Mandera Law Courts for resentencing.
9. Thus, the court makes the following orders: -
(1) The death sentence in Mandera Principal Magistrate’s Court Criminal Case No. 306 of 2011 is set aside.
(2) The matter is referred back to the Law Court Mandera for sentencing after considering mitigations and period Applicant has been in custody.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 23RD DAY OF JULY, 2020.
C. KARIUKI
JUDGE