[2019] KEHC 11797 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner had served 23 years, demonstrated remorse, and had a positive report from prison authorities. The court exercised its discretion to resentence the...
Source-derived case information.
- Citation
- [2019] KEHC 11797 (KLR)
- Parties
- Petitioner: Charles Oduor Hainja; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 26 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; petitioner resentenced to time served and released unless otherwise lawfully held.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Fundamental Rights, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Oduor Hainja
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing based on time already served and his reformation.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner had served 23 years, demonstrated remorse, and had a positive report from prison authorities. The court exercised its discretion to resentence the petitioner to the period already served, noting that no one was injured during the robbery. The petitioner was ordered to be released unless otherwise lawfully held.
Court Disposition
petition allowed; petitioner resentenced to time served and released unless otherwise lawfully held.
Orders
- The petitioner is resentenced to 23 years already served.
- The petitioner is to be released unless validly held for another cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 26 OF 2018
IN THE MATTER OF: THE CONSTITUTION OF KENYA 2010 (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF AN INDIVIDUAL) UNDER ARTICLE 2B (1) 27 (1) (2), 28, 29 (A) (D) (F), 48 AND ARTICLE 50 (2) (H) (P), 6(A) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLE 23(1) AS READ WITH ARTICLE 165 OF THE CONSTITUTION IN THE MATTER OF SECTIONS 16 & 329 OF THE CRIMINAL PROCEDURE CODE
AND
IN THE MATTER OF: SECTION 296 (2) OF THE PENAL CODE
BETWEEN
CHARLES ODUOR HAINJA................................... PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION...........RESPONDENT
JUDGMENT
1. The matter before the Court is a petition by the Petitioner for resentencing.
2. The Petitioner herein was charged with robbery with violence contrary to Section 296 (2) in Criminal Case No. 2129 of 1996 and was sentenced to death.
3. The Petitioner is now before this Court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRin which the Court declared mandatory death sentence to be unconstitutional.
4. Mr. Fedha learned counsel for the Director of Public Prosecution has submitted that the Petitioner be sentenced to 24 years since he has served 24 years now.
5. The Petitioner avers that he was charged with robbery with violence and has now served 23 years in prison and that he is a reformed person. He prays that he be jailed for the time already served of 23 years.
The Determination
6. I have considered the petition. The Petitioner regrets what he did. There is a good report of him from the prison. I think he should be given a second chance. I sentence him to the 23 years already served, noting that nobody was injured in the robbery. I herewith release the Petitioner unless validly held.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 15th day of October, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant