[2019] KEHC 11948 (KLR)
The court found that, following the Supreme Court's decision in Francis Kariuki Muruwatetu & Another v Republic, the mandatory death sentence previously imposed on the applicant was unconstitutional. The court considered the applicant's remorse, the absence of injury to victims, and the 14 years already served in...
Source-derived case information.
- Citation
- [2019] KEHC 11948 (KLR)
- Parties
- Applicant: Alex Afande Salamba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 497 of 2006
- Procedural Posture
- Criminal Appeal / Resentencing Following Supreme Court Decision
- Outcome
- Applicant to be set free unless otherwise lawfully held.
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Mitigation, Death Penalty, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Afande Salamba
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence imposed on the applicant is unconstitutional in light of the Supreme Court decision in Francis Kariuki Muruwatetu & Another v Republic.
- 2 Whether the period already served by the applicant is sufficient punishment given the circumstances of the offence.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis Kariuki Muruwatetu & Another v Republic, the mandatory death sentence previously imposed on the applicant was unconstitutional. The court considered the applicant's remorse, the absence of injury to victims, and the 14 years already served in custody. It concluded that the period served was sufficient punishment, fulfilling the objectives of deterrence and retribution. Accordingly, the applicant was entitled to be set free unless otherwise lawfully held.
Court Disposition
Applicant to be set free unless otherwise lawfully held.
Orders
- The applicant be forthwith set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 497 OF 2006
ALEX AFANDE SALAMBA...............................................APPLICANT
VERSUS
REPUBLIC........................................................................RESPONDENT
RULING
1. I have considered the respective submissions by both parties. The Applicant was charged alongside another with four counts of robbery with violence. He was convicted in counts I, II and III and sentenced to suffer death. His two appeals to the Court of Appeal were dismissed.
2. The judgment in the Court of Appeal was delivered on 20/12/2018 when the Supreme Court had already delivered the decision in Francis Kariuki Muruwatetu & Another V Republic. The decision declared the mandatory death sentence unconstitutional. Pursuant thereto, this court as the first appellate court was ordered to consider the Applicant’s mitigation and pass the deserved sentence.
3. I have considered that the Applicant is remorseful. I also consider that although the offence was serious, no one was injured in the robbery. Punishment is intended to act as deterrence and retributive which in my view, the purpose has been fulfilled. I hold therefore that for the 14 years the Applicant has been in custody has served sufficient sentence.
4. I order that he be forthwith set free unless otherwise lawfully held.
Dated and Delivered at Nairobi this 8th day of October, 2019.
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
1. Applicant in person.
2. Mr. Momanyi for the respondent