[2021] KEHC 8389 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and that courts must consider mitigating factors in resentencing. The petitioner, having served 16 years in prison, demonstrated evidence of reform and discipline,...
Source-derived case information.
- Citation
- [2021] KEHC 8389 (KLR)
- Parties
- Appellant: Ali Shaban Ali; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 141 of 2018
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- petition allowed; petitioner released
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Constitutional Rights, Rehabilitation, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Shaban Ali
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Resentencing Application / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing based on the circumstances of the offence and his conduct in prison.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and that courts must consider mitigating factors in resentencing. The petitioner, having served 16 years in prison, demonstrated evidence of reform and discipline, including undertaking a course while incarcerated. The court considered the seriousness of the offence, the injury to the victim, and the petitioner's conduct in prison. Balancing these factors and referencing similar resentencing cases, the court determined that the petitioner had sufficiently atoned for his crime and ordered his immediate release unless otherwise lawfully held.
Court Disposition
petition allowed; petitioner released
Orders
- The petitioner is hereby set free and forthwith released from prison unless lawfully withheld.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
PETITION NO. 141 OF 2018
ALI SHABAN ALI.........................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS..............................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein ALI SHABAN ALI was charged with the Offence of robbery with violence contrary to 296 (2) of the Penal Code.
2. The particulars of the offence were that
“On 22nd November, 2005 at about 1:00pm at Mtopanga Village, Bamburi Location in Mombasa District within Coast Province jointly with others not before the court while armed with an offensive weapon namely knife robbed George Omondi of one mobile phone make Nokia 8210 valued at Kshs. 11,000/=, a poach containing Kshs. 100 and at immediately before or immediately after the time of such robbery threatened to use actual violence to the said George Omondi Oliech.”
3. He was convicted and sentenced to suffer death.
4. His appeal to both the High Court and Court of Appeal were dismissed and conviction and sentence upheld. The sentence to suffer death was later commuted to life imprisonment.
5. The Petitioner is now in this court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLRin which the apex Court found the mandatory nature of the death sentence to be unconstitutional.
6. Mr. Fedha, learned counsel for the State submitted that the Petitioner was in company of others and they were armed with a knife that was used to cut the thumb of the victim during the robbery where he robbed the victim of a mobile phone and a porch. Counsel prayed for a definite sentence of 25 years imprisonment including years served due to circumstances surrounding his charge.
7. The Petitioner on his part submitted that he was a first offender; that he was young when he committed the offence and that he has reformed during the time he has been in prison. He stated that he has undertaken a course while in prison, and so will be gainfully employed if released.
8. I have considered the petition and the submissions. The Petitioner committed robbery with violence. The Petitioner was in the company of other people. He was armed with a knife that is considered a dangerous and offensive weapon. The Petitioner injured the victim by cutting his thumb; he robbed him off his phone and his porch.
9. I have taken into account some of the cases where convicts for robbery with violence were re-sentenced after the Muruatetu case. In Benjamin Kemboi Kipkone v R [2018] eKLRwhere 3 robbers armed with an AK 47 rifle robbed the complainant of Ksh. 250,000/= and a mobile phone, Chemitei J. substituted the death sentence with 20 years imprisonment. In Paul Ouma Otieno v Republic [2018] eKLR where the accused being armed with an AK 47 rifle and a kitchen knife robbed the complainant of Ksh. 450,000/= and 3 mobile phones. Majanja J. substituted the death sentence with 20 years imprisonment.
10. The Petitioner in this case was in the company of others. He used a knife to injure the victim. However, his prison report indicates that he has reformed and he is disciplined; that he has also taken up a course to upgrade himself.
11. In the premises I am satisfied that the Petitioner who has served now 16 years in prison has atoned for his crime. Accordingly, the Petitioner is hereby set free and forthwith released from prison unless lawfully withheld.
Dated, Signed and Delivered at Mombasa this 9th day of March, 2021.
E.K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Mr. Fedha for DPP
Mr. Josephat Court Assistant