[2021] KEHC 12743 (KLR)
The court found that the mandatory death sentence previously imposed on the petitioner was unconstitutional in light of the Supreme Court's decision in Muruatetu. The court considered the petitioner's remorse, rehabilitation, and the 16 years already served in prison. Given that the victim was not physically harmed...
Source-derived case information.
- Citation
- [2021] KEHC 12743 (KLR)
- Parties
- Applicant: Bakari Rashid; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 177 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- death_sentence_set_aside; petitioner resentenced to time served and released
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing, Robbery With Violence, Penal Code Section 296 2, Rehabilitation, Remorse and Reintegration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bakari Rashid
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence imposed under Section 296(2) of the Penal Code is unconstitutional following the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 Whether the petitioner, having served 16 years in prison for robbery with violence, should be resentenced to a lesser term or released.
Ratio Decidendi
The court found that the mandatory death sentence previously imposed on the petitioner was unconstitutional in light of the Supreme Court's decision in Muruatetu. The court considered the petitioner's remorse, rehabilitation, and the 16 years already served in prison. Given that the victim was not physically harmed and the petitioner had demonstrated reform, the court held that the time served constituted adequate punishment. The death sentence was set aside and substituted with a sentence equivalent to the period already served, resulting in the petitioner's immediate release unless otherwise lawfully held.
Court Disposition
death_sentence_set_aside; petitioner resentenced to time served and released
Orders
- The death sentence imposed upon the petitioner is set aside.
- The petitioner is sentenced to the term already served.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 177 OF 2019
BAKARI RASHID...............................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION....................................RESPONDENT
JUDGMENT
1. The Petitioner was charged and convicted for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and was sentenced to death in Mombasa Criminal case no. 4231 of 2006. His appeal to High Court was dismissed.
2. The Petitioner is now in this court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR in which the Apex Court found that the mandatory nature of the death sentence to be unconstitutional.
3. I have considered submissions on resentencing both from the Petitioner and from the Director of Public Prosecutions. The Petitioner has been in jail for fifteen (16) years now. He submits that he has reformed, he is remorseful, and he is rehabilitated. Therefore, he should be set free so that he can be reintegrated back to society.
4. On her part, learned Counsel Ms. Anyumba for the DPP submitted that taking into account the circumstances of this case and the fact that the victim was not physically harmed at the time of the robbery, the petitioner ought to be jailed for the time already served.
5. I have carefully considered these submissions. The objective of sentence is to meet out proper retribution for the offence. It also aims at reforming the convict.
6. The Petitioner appears to me to be remorseful of his past. The 16 years he has spent in jail is not a short time. During that time, I believe he has had a chance to reflect on his life. I am satisfied that the 16 years already served by the Petitioner is adequate punishment for the crime he was convicted for.
7. I therefore hereby set aside the death sentence imposed upon the Petitioner. Instead, thereof I sentence the Petitioner to serve the term he has already served. The result is that the Petitioner is hereby released and set free unless lawfully withheld.
That is the Judgment of the Court.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 23RD DAY OF MARCH, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Anyumba for DPP
Ms. Peris Court Assistant