[2019] KEHC 11614 (KLR)
The court found that the petitioner, having served 25 years in prison for the offence of murder, had fulfilled the objectives of punishment, including retribution, rehabilitation, and reformation. The court considered the petitioner's age, medical condition, positive prison progress report, and her role as a...
Source-derived case information.
- Citation
- [2019] KEHC 11614 (KLR)
- Parties
- Petitioner: Anastasia Munini Mbai; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 201 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed in part
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Right to Fair Trial, Rehabilitation and Reformation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anastasia Munini Mbai
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 Whether the period already served by the petitioner is sufficient punishment for the offence committed.
- 3 Whether the petitioner should be released on probation or unconditionally.
Ratio Decidendi
The court found that the petitioner, having served 25 years in prison for the offence of murder, had fulfilled the objectives of punishment, including retribution, rehabilitation, and reformation. The court considered the petitioner's age, medical condition, positive prison progress report, and her role as a counselor and leader among inmates. The prosecution's concession that the petitioner had reformed and could be released on probation was also noted. In light of the Supreme Court's guidance in Muruatetu, the court determined that continued incarceration was unnecessary and that the petitioner should be released from prison, subject to a probationary period to facilitate her...
Court Disposition
petition allowed in part
Orders
- The petitioner is released from prison.
- The petitioner shall be under probation for a period of one (1) year.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 201 OF 2018
IN THE MATTER OF: ARTICLES 22(1), 23(1), 25(a) (c) (d), 50(1), 19(1) (2) and (3), 20(1)
(2) (3) and (4), 21(1), 27(1), 28, 47, 48, 165, 258 AND 259 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER: OF: SECTION 216 AND 329 OF THE CRIMINAL
PROCEDURE CODE AND SECTION 204 OF THE PENAL CODE
AND
IN THE MATTER OF: SECTION 333 OF THE CRIMINAL PROCEDURE CODE
AND
IN THE MATTER OF: SUPREME COURT JUDGMENT PETITION NO.
15 OF 2015 FRANCIS KARIOKO MURUATETU AND WILSON THIRIMU MWANGI
AND
IN THE MATTER OF: DECLARATION IN PETITION NO. 618 OF
2010 JOSEPH KABERIA KAHIGA AND OTHERS VS. ATTORNEY GENERAL (2016)
AND
IN THE MATTER OF: COURT OF APPEAL CR. APPLICATION NO. 199 OF 2004 AT MOMBASA
AND
IN THE MATTER OF: HIGH COURT CRIMINAL CASE FILE NO. 198 OF 1994 AT MOMBASA
BETWEEN
ANASTASIA MUNINI MBAI..............................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION....................RESPONDENT
JUDGMENT
1. The Petitioner herein has come to this Court for purposes of resentencing arising from the decision of the Supreme Court in Francis Karioko Muruatetu vs. Republic [2017] eKLR. The Petitioner was tried for murder in trial cause No. MSA HCCC No. 198/1994, was convicted and sentenced to death. She appealed vide Mombasa Appeal No. 199/2004 and the conviction was upheld.
2. The Petitioner killed her own husband. The Petitioner is 69 years old and has served 25 years in prison.
3. The Petitioner’s prison progress report states that she suffers hypertension and eye cataract. She is a leader in prison and a counsellor. The Petitioner has a son and six (6) grandchildren. She submits that she will be welcomed home if she is released. The Petitioner submitted that the 25 years she has served in prison is adequate punishment, that the crime was that of passion, that she has reformed and understands the value of keeping peace, and prays for instant release.
4. The prison progress report speaks well of the Petitioner. There is also medical report showing that the Petitioner suffers hypertension and eye cataract.
4. On their part the Director of Public Prosecution submitted that the Petitioner committed a crime of passion, and has reformed, and should be released on probation for a period of 3 years.
The Determination
5. I have carefully considered the submissions of the parties. The prosecution agrees that the Petitioner be released on a 3 year probation. I have also noted that the aim or goal of sentencing is about retribution, rehabilitation and reformation. The Petitioner has fulfilled all the above requirements. The Petitioner has trained inmates and is a counselor. The inmates relate well with her.
6. I am satisfied that the Petitioner has served time in prison enough to achieve the objectives of punishment by way of sentence.
7. Accordingly, this Court herewith releases the Petitioner from prison on condition that the Petitioner shall be under probation for a period of one (1) year.
That is the Judgment of the Court.
Dated, Signed and Delivered in Mombasa this 30th day of July, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant