[2019] KEHC 4458 (KLR)
The court found that, in light of the Supreme Court's decision in Muruatetu, the mandatory death sentence previously imposed on the Petitioner was unconstitutional. The court considered the circumstances of the offence, noting that although the Petitioner threatened violence during the robbery, no one was harmed....
Source-derived case information.
- Citation
- [2019] KEHC 4458 (KLR)
- Parties
- Appellant: Ali Mlako Mwero; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 49 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- petition_allowed
- Judges
- DO Ogembo
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Death Penalty, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ali Mlako Mwero
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence imposed on the Petitioner for robbery with violence is unconstitutional following the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic.
- 2 Whether the Petitioner is entitled to resentencing and, if so, what sentence is appropriate.
Ratio Decidendi
The court found that, in light of the Supreme Court's decision in Muruatetu, the mandatory death sentence previously imposed on the Petitioner was unconstitutional. The court considered the circumstances of the offence, noting that although the Petitioner threatened violence during the robbery, no one was harmed. The Petitioner had already served 20 years in prison, which the court deemed sufficient for retribution, rehabilitation, and reform. Consequently, the court resentenced the Petitioner to 20 years' imprisonment, effectively ordering his immediate release as he had already served the full term.
Court Disposition
petition_allowed
Orders
- The Petitioner is resentenced to 20 years in jail.
- Having served the entire sentence, the Petitioner is to be forthwith set free and released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 49 OF 2018
ALI MLAKO MWERO....................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.................RESPONDENT
JUDGMENT
1. The matter before the Court is a petition by the Petitioner for resentencing.
2. The Petitioner herein was charged with robbery with violence contrary to Section 296 (2), particulars being on 21st and 22nd April. 1999 at about 4. 00 a.m. at Mwalughanje Gate – Kinango Location in Kwale District within Coast Province, jointly with others not before court being armed with dangerous weapons namely pangas robbed Mesalim Charo cash Kshs. 20,450/=, one wrist watch, one radio make Sonny all valued at 25,450/= and at or immediately before or immediately after the time of such robbery, threatened to use actual violence to the said Mesalim Charo.
3. The charge was proved and the Petitioner was jailed to suffer death. The sentence was confirmed in appeal.
4. The Petitioner is now before this Court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR in which the Court declared mandatory death sentence to be unconstitutional.
5. Mr. Fedha learned counsel for the Director of Public Prosecution has submitted that the Petitioner be sentenced to the 20 years he has already served in the prison.
6. I have considered the submissions. The Petitioner was involved in a heinous offence in which he threatened violence but we thank God he did not harm anybody.
7. The Petitioner has been in jail for 20 years. In my view, the Petitioner has learned from his mistake and has also suffered retribution, has been rehabilitated and I believe is also reformed.
8. The Petitioner is accordingly hereby sentenced to 20 years in jail, and having served the entire sentence the Petitioner is hereby forthwith set free and released from prison unless otherwise lawfully held.
That is the Judgment of the Court.
Dated, Signed and Delivered in Mombasa this 17th day of September, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant