[2021] KEHC 9543 (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 sentencing discretion must be exercised. The Petitioner, having served 13 years, demonstrated remorse, rehabilitation, and positive conduct in prison. While...
Source-derived case information.
- Citation
- [2021] KEHC 9543 (KLR)
- Parties
- Appellant: Amani Baro Ngundo; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 36 of 2019
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- death sentence set aside; Petitioner resentenced to 17 years imprisonment from date of conviction
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentencing, Unconstitutionality of Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amani Baro Ngundo
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Resentencing Application / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the Petitioner given the circumstances of the offence and his personal mitigation.
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 sentencing discretion must be exercised. The Petitioner, having served 13 years, demonstrated remorse, rehabilitation, and positive conduct in prison. While the offence was serious, involving violence and use of dangerous weapons, the court determined that a sentence of 30 years as proposed by the prosecution was excessive. Balancing the seriousness of the crime with the Petitioner's mitigation and prospects for reintegration, the court set aside the death sentence and imposed a custodial sentence of 17 years from the date of...
Court Disposition
death sentence set aside; Petitioner resentenced to 17 years imprisonment from date of conviction
Orders
- The death sentence imposed on the Petitioner by the trial court is set aside.
- The Petitioner is sentenced to 17 years imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
PETITION NO. 36 OF 2019
AMANI BARO NGUNDO..........................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION .........................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner Amani Baro Ngundo had filed an appeal challenging his conviction and sentence by the Senior Resident Magistrate at the Mombasa Law courts. The Petitioner was first arraigned in court on 14/6/2010 facing a charge of robbery with violence contrary to Section 296 (2) of the Penal code. The particulars of the charge were given as follows:
“On the 9th day of June, 2010 at about 10. 45 p.m. at Fahari Estate in Bamburi Location, Kisauni District of Coast Province while armed with dangerous and offensive weapon namely a machete, robbed Venant M. M’nwadu Mkindi of one Panasonic 14 inch TV, a Sony Hi FI system 3D changer and three pairs of leather shoes all valued at Kshs. 33,000/= and at or immediately before or immediately after the time of such robbery used actual violence to the said Venant M’nwadu Mkindi.”
2. The Petitioner filed appeal being Mombasa Criminal Appeal No. 86 of 2012 – Amani Baro Ngundo v. Republic. The said appeal was dismissed by Justices M. Odero and S. Mukunya on 31/3/2014. However, the Supreme Court later established that the Hon. Justice Mukunya (the late) being an ELC Judge ought not to have heard the appeal. The appeal was therefore declared null and void.
3. Subsequently, the Petitioner herein sought to file another appeal. However, he has not succeeded in doing that because the proceedings of trial court have not been found. In the course of waiting however, the Petitioner, by his submissions on 25/11/2020 decided to abandon his yet to be filed appeal and informed this court that he was instead praying for resentencing. He then went ahead to submit on resentencing.
4. Accordingly therefore, the Petitioner is in this court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR wherein the apex court found that the mandatory nature of the death sentence was unconstitutional.
5. The Petitioner submitted that he regretted the offence he committed and that he is a reformed person He is now born again and shuns evil. He prays for a second chance to rejoin the society of good people. He has been in jail for 13 years and has learnt tailoring. He also educates other in mates. At 44 years of age, the Petitioner prays to be allowed to go home and help his people.
6. On her part Ms. Wanjohi the learned prosecutor submitted that while this court can resentence the Petitioner, he should be jailed for 30 years.
7. I have considered the petition and submissions. The Petitioner committed robbery with violence and stole property worth Kshs. 33,000/=. In the process he harmed the complainant in the forehead and forearm. He used dangerous weapons to carry out his heinous mission. While the offence committed by the Petitioner requires adequate punishment, the 30 years imprisonment submitted for by the prosecution is on the higher side.
8. In my view the Petitioner would be adequately punished by a jail term of seventeen (17) years. I therefore hereby set aside the death sentence imposed on the Petitioner by the trial court, and in place thereof I jail the Petitioner for a term of seventeen (17) years from the date of conviction.
Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 28th dayof January, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person via video link
Ms. Wanjohi for DPP
Ms. Peris Court Assistant