[2019] KEHC 1676 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and the court retains discretion to impose an appropriate sentence. The applicant's mitigating factors, including 16 years in custody, vocational training, continued...
Source-derived case information.
- Citation
- [2019] KEHC 1676 (KLR)
- Parties
- Applicant: David Mwangi Kamau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 57 of 2018
- Procedural Posture
- Miscellaneous Application / Resentencing Application Ruling
- Outcome
- application_allowed_in_part
- Judges
- RB Ngetich
- Legal Topics
- Resentencing, Robbery With Violence, Rape Offences, Mitigating Factors, Supreme Court Guidance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mwangi Kamau
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Resentencing Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Muruatetu.
- 2 Whether the applicant's mitigating factors warrant a reduction of sentence for robbery with violence and rape offences.
- 3 What is the appropriate sentence for the rape counts under the current law.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and the court retains discretion to impose an appropriate sentence. The applicant's mitigating factors, including 16 years in custody, vocational training, continued education, and good conduct, warranted a reduction of sentence. For the rape counts, since the Penal Code provision under which the applicant was originally sentenced was repealed, the court imposed sentence under the Sexual Offences Act. The court resentenced the applicant to 20 years imprisonment for each of the three robbery with violence counts and 10 years imprisonment for...
Court Disposition
application_allowed_in_part
Orders
- Applicant to serve 20 years imprisonment for each of Count I, II, and III (robbery with violence).
- Applicant to serve 10 years imprisonment for each of Count VI and VII (rape).
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC. APPL NO.57 OF 2018
DAVID MWANGI KAMAU..........APPLICANT
VERSUS
REPUBLIC................................RESPONDENT
RULING
1. This is a ruling on applicationdated 11th May 2018 seeking an order to remit the applicant to the subordinate court for resentencing.
2. Grounds on the face of the application are that the applicant was sentenced to death and has been in custody from 18th day of December 2000.
3. The application is supported by affidavitsworn by the applicant herein. He averred that he was charged in Kericho Chief Magistrate Criminal Case Number 868 of 2001 for the offence of robbery with violence contrary to section 296(2) of the penal code. He filed Appeal Number 413 of 2007 but the appeal was dismissed.
4. He averred that he has mitigating factors that will alter the death sentence imposed on him by the trial court; that the length he has spent in custody is further mitigating factor to reduce his sentence; that he has undergone several trainings and received spiritual nourishment.
5. I note that a social enquiry report in respect of the applicant has been filed. The report show that the death sentence imposed on applicant was commuted to life imprisonment and he has been in prison for 16 years, report confirm that he has received vocational training in carpentry and upholstery and attained trade test grade 1 for both courses.; that he has also continued with formal education up to form 2. Enquiry report indicate that his character and conduct in prison has been good.
6. In view of the Supreme Court determination in the case of Muruatetuwhere the court held that the jurisdiction of the court in exercising its discretion should not be taken away, I am inclined to allow the applicant’s prayer for resentence in respect to the 3 counts of robbery with violence.
7. I also note that the appellant was charged with 2 counts of rape in Count VI and VII. He was charged under Section 140 of the Penal Code which is how repealed. He was sentence to 10 years with hard labour and 4 strokes in each count as per the repealed section of the Penal Code. Sentence was left in abeyance in view of the death sentence imposed in Count I, II and III. I will therefore impose sentence in the 2 counts of rape under Section 3 (3) of Sexual Offences Act.
8. I have considered his mitigating factors, nature of the offences and sentence, the appellant is sentence as follows:
i. Count I, II and III to serve 20 years imprisonment for each.
ii. For Count VI & VII accused to serve 10 years imprisonment each.
iii. Sentence in all the 5 counts to run concurrently.
iv. Sentences to start from the time the applicant was sentenced by the trial court.
Ruling dated, signed and delivered at Nakuru this 4th day of December, 2019.
......................................
RACHEL NGETICH
JUDGE
IN THE PRESENCE OF:-
Jenifer - Court Assistant
Applicant in person
Nyakira for state