[2021] KEHC 273 (KLR)
The court held that, in light of the Supreme Court's decision in Muruatetu, the mandatory death penalty is unconstitutional and courts must exercise discretion in sentencing. Considering the petitioners' remorse, the reconciliation between the families, and the readiness of society to reintegrate the petitioners,...
Source-derived case information.
- Citation
- [2021] KEHC 273 (KLR)
- Parties
- Applicant: Amer Muktar Ali; Respondent: The Director Of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E015 of 2021
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; death sentence substituted with period served; petitioners to be released unless otherwise lawfully held.
- Judges
- JM Mativo
- Legal Topics
- Sentencing Principles, Death Penalty, Resentencing, Judicial Discretion
- 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
Amer Muktar Ali
Applicant
The Director Of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death penalty should be substituted following the Supreme Court decision in the Muruatetu case.
- 2 Whether the petitioners are entitled to resentencing based on current constitutional and sentencing principles.
Ratio Decidendi
The court held that, in light of the Supreme Court's decision in Muruatetu, the mandatory death penalty is unconstitutional and courts must exercise discretion in sentencing. Considering the petitioners' remorse, the reconciliation between the families, and the readiness of society to reintegrate the petitioners, the court found it just to substitute the death penalty with a sentence equivalent to the period already served. The court emphasized the importance of individualized sentencing and the evolving nature of criminal justice, which now also considers the interests of victims and society.
Court Disposition
petition allowed; death sentence substituted with period served; petitioners to be released unless otherwise lawfully held.
Orders
- The penalty of death imposed upon the petitioners is reduced to the period already served in jail.
- The petitioners, Mr Issa Dual Gure and Mr Amer Muktar Ali, are to be released from prison forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
Ali v Prosecutions (Constitutional Petition E015 of 2021) [2021] KEHC 273 (KLR) (26 November 2021) (Judgment)
Neutral citation number: [2021] KEHC 273 (KLR)
Republic of Kenya
In the High Court at Mombasa
Constitutional Petition E015 of 2021
JM Mativo, J
November 26, 2021
Between
Amer Muktar Ali
Petitioner
and
The Director Of Public Prosecutions
Respondent
Judgment
1. Sentencing is an important task in the matters of crime. Sentencing is a discretion of the court and the court and the court must exercise the discretion judiciously and not capriciously (See Shadrack K. Kogo vs Republic). One of the prime objectives of Criminal Law is the imposition of an adequate, appropriate, just and proportionate sentence commensurate with the crime and the manner in which the crime was committed.
2. There is no straight forward formula for sentencing an accused person upon proof of crime. What sentence would meet the ends of justice depends on the facts and the circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances in mind. While excessing its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factors should be considered.
3. It is also important to mention that traditionally an accused person was treated as the most favourable child of the Law under the common Law. However, the emergence of transformative constitutions changed the legal landscape such that today victims of the crime and the persons likely to be affected by the offence are accorded a hearing.
4. The Laws is not static the accused person was sentenced to suffer death. The penalty prescribed by the law then was mandatory. Since their conviction, a lot of water has gone under the bridge and in many jurisdictions worldwide, the dealt penalty has been abolished. As if taking cue from the worldwide trend, the Apex Court made a classis determination in the Muruatetu case effectively abolishing the death penalty.
5. The Petitioners are now before me for resentencing on the strength of the SC decision. I have carefully read the reports prepared by the Probation officer. I also note that the deceased wife wife was involved in the process and she is in court today. She has confirmed that they had discussions and the two families have forgiven each other.
6. Taking into account the principles of sentencing discussed earlier and the said reports and noting that the petitioners are remorseful and then the society is ready and willing to welcome them back, I find and hold that it would be in the interests of justice to give the Petitioners another chance to restart their lives.
7. Accordingly I reduce, the penalty of death imposed upon the Petitioners to the period already served in jail and order that the two Petitioners, Mr Issa Dual Gure and Mr.Amer Muktar Ali be released from prison forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 26TH NOVEMBER 2021JOHN M. MATIVOJUDGE