[2019] KEHC 11998 (KLR)
The court found that the mandatory death sentence previously imposed on the petitioner was unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the petitioner's remorse, the positive prison report, the absence of injury to victims, and the 21 years already served. Balancing...
Source-derived case information.
- Citation
- [2019] KEHC 11998 (KLR)
- Parties
- Appellant: Damwena Hassan Machea; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 182 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Following Supreme Court Decision
- Outcome
- Petition allowed; petitioner resentenced to period already served and released unless otherwise lawfully held.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Sentencing, Right to Fair Trial, Resentencing Guidelines, Rehabilitation and Reformation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damwena Hassan Machea
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence imposed on the petitioner is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR.
- 2 What is the appropriate sentence for the petitioner considering the period already served, mitigation, and principles of sentencing.
Ratio Decidendi
The court found that the mandatory death sentence previously imposed on the petitioner was unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the petitioner's remorse, the positive prison report, the absence of injury to victims, and the 21 years already served. Balancing these factors and the principles of sentencing, the court determined that the period already served was sufficient punishment and ordered the petitioner's release unless otherwise lawfully held.
Court Disposition
Petition allowed; petitioner resentenced to period already served and released unless otherwise lawfully held.
Orders
- The petitioner is sentenced to the 21 years already served.
- The petitioner is to be released unless validly held for any other reason.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 182 OF 2018
IN THE CONSTITUTION OF KENYA 2010 (SUPERVISORY JURISDICTION
ANDPROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
OF AN INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES 2013
IN THE MATTER OF: ARTICLE 22(i) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, 24, 25, 27, 48, 50,258 & 259 OF THE CONSTITUTION OF KENYA
AND
BETWEEN
DAMWENA HASSAN MACHEA............................................PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION..........................RESPONDENT
JUDGMENT
1. The Petitioner DAMWENA HASSAN MACHEA was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code in Criminal Case No. 4369 of 1999 and sentenced to death. His appeal to the Court of Appeal was dismissed on 27th September, 2001.
2. The petition is now before the Court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR which decided that a mandatory death sentence is unconstitutional.
3. The Petitioner has been in custody for 21 years. He submitted that the said period of 21 years is enough punishment for the crime he was convicted for, and that he has totally changed and fully rehabilitated.
4. Mr. Fedha learned counsel for the prosecution submitted that the Petitioner be sentenced to 21 years since he has served 21 years now.
5. I have considered the submissions. The principle in sentencing is that the Court should take into account the mitigation offered by the Petitioner, the facts of retribution, rehabilitation and reformation. The Court should ask itself whether the Petitioner is remorseful, and has sufficiently been rehabilitated and reformed to reasonably be expected to assume life in a free and orderly society. The Court must also look at the nature of the offence the Petitioner was convicted for, and it has effected the victims.
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 sentence him to the 21 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 in Mombasa this 19th day of November, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant