[2020] KEHC 6659 (KLR)
The court found that the mandatory death sentence imposed on the applicant for attempted robbery was unconstitutional in light of the Supreme Court's decision in Muruatetu and subsequent superior court decisions. The court held that sentencing discretion must be exercised by the trial court, and the applicant is...
Source-derived case information.
- Citation
- [2020] KEHC 6659 (KLR)
- Parties
- Applicant: Dakane Mohamed Mughow; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 79 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Resentencing Application
- Outcome
- Application for resentencing allowed; death sentence set aside; matter referred for resentencing.
- Judges
- CM Kariuki
- Legal Topics
- Attempted Robbery, Mandatory Sentencing, Death Penalty, Resentencing, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dakane Mohamed Mughow
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Resentencing Application
Legal Issues
- 1 Whether the mandatory death sentence for attempted robbery under section 297(2) of the Penal Code is unconstitutional in light of the Muruatetu decision.
- 2 Whether the applicant is entitled to resentencing following the unconstitutionality of the mandatory death sentence.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the applicant for attempted robbery was unconstitutional in light of the Supreme Court's decision in Muruatetu and subsequent superior court decisions. The court held that sentencing discretion must be exercised by the trial court, and the applicant is entitled to resentencing. As the prosecution did not oppose the application, the court set aside the death sentence and referred the matter back to the trial court for appropriate sentencing.
Court Disposition
Application for resentencing allowed; death sentence set aside; matter referred for resentencing.
Orders
- The death sentence in Criminal Case No. 251 of 2012 in Senior Principal Magistrate’s Court at Hola is set aside.
- The matter is referred to Hola for sentencing.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 79 OF 2019
DAKANE MOHAMED MUGHOW.......................APPLICANT
VERSUS
REPUBLIC............................................................RESPONDENT
RULING
1. The applicant was convicted and sentenced to death on offence of attempted robbery contrary to section 297(2) of the Penal Code in Criminal Case No. 251 of 2012 at Hola.
2. He appealed in High Court Criminal Appeal No. 54 of 2013 at Garissa. The same appeal was heard and dismissed. He did not appeal any further.
3. The trial court on 14/4/2013 after hearing mitigations said court had no discretion as the only penalty for the offence charged was death.
4. Under Muruatetu case and subsequent superior courts decisions have held that mandatory nature or aspect of a death sentence is unconstitutional.
5. Thus the applicant has invoked the above principle of law and thus seeks resentencing. The prosecution does not oppose the application. Thus the court makes the following orders:
i. The death sentence in Criminal Case No. 251 of 2012 in Senior Principal Magistrate’s Court at Hola is set aside.
ii. The matter is referred to Hola for sentencing.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 2ND DAY OF APRIL, 2020.
……………….………………
C. KARIUKI
JUDGE