[2020] KEHC 9488 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence could not stand and that the Petitioner was entitled to resentencing. In considering the appropriate sentence, the court took into account the Petitioner's remorse, positive conduct and...
Source-derived case information.
- Citation
- [2020] KEHC 9488 (KLR)
- Parties
- Appellant: Athuman Salim Athuman; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 37 of 2017
- Procedural Posture
- Constitutional Petition / Resentencing After Supreme Court Decision
- Outcome
- Death sentence set aside; Petitioner resentenced to sixteen years imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing Principles, Robbery With Violence, Mitigation of Sentence
- 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
Athuman Salim Athuman
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the Petitioner upon resentencing.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence could not stand and that the Petitioner was entitled to resentencing. In considering the appropriate sentence, the court took into account the Petitioner's remorse, positive conduct and rehabilitation while in prison, and the circumstances of the offence. The court determined that a custodial sentence of sixteen years from the date of arrest was just and proportionate, setting aside the death sentence previously imposed.
Court Disposition
Death sentence set aside; Petitioner resentenced to sixteen years imprisonment from date of arrest.
Orders
- The death sentence imposed on the Petitioner is set aside.
- The Petitioner is sentenced to sixteen (16) years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
26 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 37 OF 2017
ATHUMAN SALIM ATHUMAN..........................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS..........RESPONDENT
JUDGMENT
1. The Petitioner herein was charged in the Principal Magistrate’s Court at Kwale with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. Upon completion of trial, the Petitioner was found guilty and was sentenced to death on 6/6/2013. The Petitioner subsequently filed a first appeal to the High Court at Mombasa on 18/7/2014. Muya J. found the appeal to be devoid of merit and dismissed it in its entirety. The Petitioner was aggrieved and lodged a second appeal to the Court of Appeal which upon hearing of the said appeal held as follows, “Having however concluded that the Appellant was properly and positively identified by PW1 and PW 4, it matters not whether the doctrine of recent possession was applicable in this case. The identification of the Appellant was reliable and safe…Ultimately we have come to the conclusion that this appeal has no merit and the same is accordingly dismissed in its entirety.”
2. The background on the charge against the Petitioner was the events that took place on the night of 2/9/2011 at Kombani market, Tiwi Location, Kwale County. On the material day the complainant, Swaleh Mohamed Tenga (PW1) was taking refreshments at Kombani bar, Kombani market, when a friend of his called Bakari and two other people who were unknown to him, joined him. One of the two was the Petitioner.
3. The Petitioner and others ordered drinks and were together in the bar for between forty five minutes to one hour. When the bar closed, PW 1 with the two strangers relocated to a nearby disco. After a while, PW 1 opted to retire for the night and his two companions offered to get him a motor cycle (boda boda) to take him home. As PW 1 got on the motor cycle, the Petitioner switched the same off and with his companion set upon PW 1, assaulted him and robbed him of a Nokia C3 phone valued at Kshs. 10,500/=, a wallet containing Kshs. 800/= and ATM and voter’s card. Fearing for his safety, the owner of the motor cycle, Salim Hamadi Baya (PW 4) rode off and left PW 1 with his assailants, who soon escaped.
4. PW 1 reported the incident at Diani Police Station at around 4. 30 a.m. and was treated at kaya Medical Clinic. He was also issued with a P3 form. When Dr. Alfred Baya (PW 3) examined him on 5/9/2011, he noted a swollen face and a tender neck. He classified the degree of the injuries as harm.
5. Subsequently, PW 1 went to his friend Bakari to inquire the identity of his assailants. Bakari led him to their respective homes, but the suspects were not there. At the Petitioner’s home, he met the Petitioner’s uncle. A few days later that uncle called and informed PW 1 that the Petitioner had been arrested whilst trying to sell a phone. PW 1 then proceeded to Diani Police Station where he found the Petitioner under arrest and identified him as one of the assailants. He also identified his stolen phone.
6. The Petitioner is now before this court pursuant to the decision of the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRthat outlawed the mandatory nature of the death sentence.
7. The Petitioner submitted that he regretted the offence which he had committed, and prayed to be jailed for the 9 Years he has served in prison, and in any event not more than 15 years.
8. Mr. Fedha, learned counsel for the State submitted that the Petitioner should be jailed for 30 years to serve as an example to would be robbers.
9. I have carefully considered the mitigation offered by the Petitioner. I have also noted that he is a responsible member of the prison and advocates against drug use, and has become responsible. He is a proper advocate that crime does not pay.
10. In resentencing, I hereby set aside the death sentence and in place thereof I jail the Petitioner to a term of sixteen (16) years from the date of arrest.
11. Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 30th day of March, 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Ms. Mwangeka for DPP
Petitioner in person via video link
Mr. Kaunda Court Assistant