[2020] KEHC 9503 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the Petitioner was unconstitutional. The court considered the Petitioner's age, remorse, family circumstances, favourable social inquiry report, and the fact that he had already served 22 years in...
Source-derived case information.
- Citation
- [2020] KEHC 9503 (KLR)
- Parties
- Appellant: Alex Juma alias Jimmy Kazungu; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 118 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing After Exhaustion of Appellate Rights
- Outcome
- Death sentence set aside; Petitioner sentenced to time served and released.
- Judges
- DO Ogembo
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Firearm Possession, Resentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Juma alias Jimmy Kazungu
Appellant
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Exhaustion of Appellate Rights
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the period already served by the Petitioner is sufficient punishment for the offences committed.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the Petitioner was unconstitutional. The court considered the Petitioner's age, remorse, family circumstances, favourable social inquiry report, and the fact that he had already served 22 years in prison. The court held that the period already served was sufficient punishment for the offences of robbery with violence and possession of a firearm. Accordingly, the death sentence was set aside and substituted with a sentence equivalent to the time already served, resulting in the Petitioner's immediate release unless otherwise lawfully held.
Court Disposition
Death sentence set aside; Petitioner sentenced to time served and released.
Orders
- The death sentence imposed upon the Petitioner by the trial court is set aside.
- The Petitioner is sentenced to the time already served of 22 years.
Full Case Text
Judgment text and source record
25 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 118 OF 2018
ALEX JUMA alias JIMMY KAZUNGU.......................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS....................RESPONDENT
JUDGMENT
1. The Petitioner herein Alex Juma Alias Jimmy Kazungu was convicted for offence of robbery with violence and being in possession of a firearm. He was sentenced to death. His is now here for resentencing. The Petitioner together with others was armed with a pistol and robbed two complainants of Kshs. 300,000/= and threatened to shoot the victim. The second victim was robbed of Kshs. 17,802/= and a wrist watch and was also threatened by the Petitioner. On being in possession of firearm he was sentenced to four (4) years.
2. The Petitioner has exhausted his appellate rights and is now before this court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRin which the apex court found that the mandatory nature of the death sentence is unconstitutional.
3. Ms. Ogega, learned Counsel for the State submitted that the Petitioner committed robbery with violence while armed with dangerous weapons including a firearm, and should be sentenced to a total of 25 years in prison.
4. The Petitioner on his part submitted that he regretted the crime and that he is now reformed and that at 62 years he is old and has no strength for mischief.
5. On 29/8/2019 a Social Inquiry Report was filed in this court on the Petitioner. The Report gives background of the Petitioner’s family. His wife is sick with tuberculosis. They have five surviving children. His father is deceased while his mother is old and needs care. The Report notes that the home environment is favourable for re-integration of the Petitioner.
6. The Petitioner has served a jail term of 22 years. In my view, the Petitioner has paid for the crimes he committed and should be released to spend the rest of his life at home.
7. In the upshot I make Judgement as hereunder:
(i) I hereby set aside the death sentence imposed upon the Petitioner by the trial court.
(ii) Instead thereof the Petitioner is jailed for the time already served of 22 years with the result that the Petitioner is hereby set free and released from prison unless otherwise lawfully held.
8. Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 9th day of April, 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Ms. Mwangeka for DPP
Petitioner in person via video link
Mr. Kaunda Court Assistant