[2019] KEHC 11615 (KLR)
The court held that, following the Supreme Court decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and the court must exercise discretion in resentencing. The court considered the gravity of the offence, the period already served, and the objectives of punishment,...
Source-derived case information.
- Citation
- [2019] KEHC 11615 (KLR)
- Parties
- Petitioner: Amani Kitsao Mwenyi; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 63 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition partly allowed; sentence revised
- Judges
- DO Ogembo, CA Otieno
- Legal Topics
- Resentencing Guidelines, Mandatory Death Sentence, Robbery With Violence, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amani Kitsao Mwenyi
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu v Republic.
- 2 What is the appropriate sentence for the petitioner convicted of robbery with violence after serving 10 years.
Ratio Decidendi
The court held that, following the Supreme Court decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and the court must exercise discretion in resentencing. The court considered the gravity of the offence, the period already served, and the objectives of punishment, including deterrence and rehabilitation. The court determined that a sentence of 22 years imprisonment, inclusive of time already served, was appropriate in the circumstances, balancing the seriousness of the offence with the need for proportionality and fairness in sentencing.
Court Disposition
petition partly allowed; sentence revised
Orders
- The petitioner is sentenced to 22 years imprisonment, inclusive of the period already served.
- The petitioner has the right of appeal to be exercised within 14 days.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 63 OF 2018
IN THE MATTER OF: ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 22(1) OF THE NEW CONSTITUTION
AND
IN THE MATTER: OF: THE HIGH COURT PRACTICE AND PROCEDURE RULE 2013 (SUPERVISION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL)
AND
IN THE MATTER OF: ARTICLE 25(C), 20(1), 23(1), 165(1), 27(2), 28, 48, 50(2) AND 259(1) OF THE CONSTITUTION
BETWEEN
AMANI KITSAO MWENI..................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.....RESPONDENT
JUDGMENT
1. The Petitioner was convicted with the offence of robbery with violence. He, together with his accomplice robbed off a motor vehicle valued at Kshs. 75,000 from a bike rider. He was sentenced to death but now seeks a resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu vs. Republic [2017] eKLR.
2. The Petitioner has already served 10 years. The Petitioner submitted that the said 10 years is enough punishment and that he should now be released.
3. On their part the prosecution submitted that the Petitioner should be jailed to a total sum of 25 years including the term served.
4. In my view the aim of punishment is retribution, rehabilitation and reformation. The Petitioner was sentenced to death, and under the said Muruatetu case, a revision of his sentence must result in a reasonable sentence which accounts for the gravity of the offence. Robbery with violence is a serious offence the punishment of which must aim at deterrence. People who choose to commit crimes must be prepared to pay for the same if they are found out. It is my view that the proper sentence should be, in this case, 22 years.
5. I accordingly sentence the Petitioner to 22 years in jail including the period already served. The Petitioner has the right of appeal to be exercised within 14 days.
That is the Judgment of the Court.
E. K. OGOLA
JUDGE
Dated, Signed and Delivered at Mombasa this 31st day of July, 2019.
P. J. O. OTIENO
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person