[2019] KEHC 7904 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu and its application by the Court of Appeal, the mandatory death sentence for robbery with violence is unconstitutional. The trial court's imposition of the death penalty was therefore unlawful. The court exercised its discretion to substitute...
Source-derived case information.
- Citation
- [2019] KEHC 7904 (KLR)
- Parties
- Appellant: Ayub Kimani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 33 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; sentence substituted
- Judges
- DAS Majanja
- Legal Topics
- Robbery With Violence, Sentencing Principles, Constitutionality of Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ayub Kimani
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code is constitutional.
- 2 What is the appropriate sentence for the appellant following the Supreme Court decision in Muruatetu.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu and its application by the Court of Appeal, the mandatory death sentence for robbery with violence is unconstitutional. The trial court's imposition of the death penalty was therefore unlawful. The court exercised its discretion to substitute the sentence with a term of ten years' imprisonment on each count, to run concurrently, considering the circumstances of the offence and the need for proportionality in sentencing.
Court Disposition
appeal allowed in part; sentence substituted
Orders
- The sentence of death is set aside.
- The appellant is sentenced to ten (10) years imprisonment on each count, to run concurrently.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CORAM: D.S. MAJANJA J.
CRIMINAL APPEAL NO. 33 OF 2018
BETWEEN
AYUB KIMANI ...................................................................APPELLANT
AN.D
REPUBLIC ....................................................................... RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. H. Barasa, PM dated 17th May 2018 at Eldoret Magistrate’s Court in Criminal Case No. 522 of 2017)
JUDGMENT
1. At the hearing of this appeal, the appellant, AYUB KIMANI, who had been convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya) conceded that he was only contesting the sentence of death imposed on him. The particulars of the charge were that on 5th February, 2017 at Califonia Estate, with in Uasin Gishu County, jointly with others not before the Court while armed with offensive weapons namely pangas, somali swords, arrow and bows, he robbed LEAH CHEPCHIRCHIR CHUMBA and HILLARY KIPKOGEI TANUI of assorted items and immediately before the time of such robbery, threatened to use actual violence on them.
2. I have considered the circumstances of the offences noting that the mandatory death sentence was found unconstitutional by the Supreme Court inFrancis Karioko Muruatetu & Another v Republic SCK Pet. No. 15 OF 2015 [2017] eKLR.The same principle was applied to the offence of robbery with violence under section 296(2) of the Penal Code by the Court of Appeal in William Okungu Kittiny v Republic KSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR.
3. I allow the appeal to the extent of the sentence which I now substitute and sentence the appellant to ten (10) years imprisonment on each count to run concurrently.
DATED and DELIVERED at ELDORET this 23rd day of April 2019.
D.S. MAJANJA
JUDGE
Appellant in person.
Ms Mumu, Prosecution Counsel, instructed by the Office of Director of Public Prosecutions for the respondent.