[2019] KEHC 7439 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court considered the facts of the case, including the appellant's role in the robbery, the harm occasioned to the complainant, and the period already served....
Source-derived case information.
- Citation
- [2019] KEHC 7439 (KLR)
- Parties
- Appellant: David Mwanza Mutemi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 1 of 2015
- Procedural Posture
- Criminal Miscellaneous Application / Application for Resentencing Following Supreme Court Decision
- Outcome
- Death sentence set aside; substituted with twelve years imprisonment from date of conviction.
- Judges
- LN Mutende
- Legal Topics
- Resentencing, Death Penalty, Robbery With Violence, Constitutional Rights, Supreme Court Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mwanza Mutemi
Appellant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Application for Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the death sentence imposed on the appellant for robbery with violence should be set aside in light of the Supreme Court decision in Muruatetu.
- 2 Whether the appellant is entitled to resentencing based on the guidelines provided in the Muruatetu case.
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 court considered the facts of the case, including the appellant's role in the robbery, the harm occasioned to the complainant, and the period already served. Applying the Muruatetu guidelines, the court set aside the death sentence and substituted it with a term of twelve years imprisonment effective from the date of conviction.
Court Disposition
Death sentence set aside; substituted with twelve years imprisonment from date of conviction.
Orders
- The death sentence imposed on the appellant is set aside.
- The appellant is sentenced to twelve years imprisonment effective from the date of conviction.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL MISC. APPLICATION NO. 1 OF 2015
DAVID MWANZA MUTEMI.....................................................APPELLANT
VERSUS
REPUBLIC..............................................................................RESPONDENT
(From Original Conviction and Sentence inMwingi Senior Resident Magistrate’s Court Criminal Case No. 698 of 2009byHon. H. M. Nyaberi (SRM)on19/10/11)
J U D G M E N T
1. David Mwanza Mutemi,the Appellant approached this Court by way of Chamber Summons seeking to benefit from the decision in Petition No. 15 of 2015 Francis Karioko Muruatetu & Another vs. Republic (2017) eKLR.
2. It is averred by the Appellant that he was charged and convicted of the offence of Robbery with Violencecontrary to Section 296(2)of the Penal Code,and sentenced to death, a decision that was affirmed by the High Court and Court of Appeal. And having exhausted the Appellate process he seeks to be re-sentenced. He has also urged the Court to take into consideration the term of sentence served amounting to ten (10) years imprisonment.
3. In response the State/Respondent through the learned State Counsel Mr. Mambaargues that death penalty is allowed under Article 26(3)of the Constitutionto the extent authorized by law. That the Appellant has not demonstrated the nature of violation of his constitutional rights that would call for the Court’s intervention.
4. I have considered rival submission of both parties herein.
5. The Supreme Court in the Muruatetu Case(supra) declared death sentence unconstitutional and gave some guidelines to be considered in such Application namely:
· The age of the offender.
· Whether he is a first offender.
· Whether the offender pleaded guilty.
· The character and record of the offender.
· Remorsefulness of the offender.
· The possibility of reform and social adaptation of the offender; and
· Any other factor that the Court considers relevant.
6. I have perused the Judgment of the Court of Appeal. From the facts the Appellant and his co-accused robbed the Complainant of Kshs. 3,575/=plus assorted items and occasioned upon him actual bodily harm.
7. In view of the Muruatetu Case,I set aside the death sentence imposed and substitute it with a sentence of twelve (12) years imprisonmentto be effective from the date of conviction.
8. It is so ordered.
Dated, Signedand Deliveredat Kituithis 30thday of April,2019.
L. N. MUTENDE
JUDGE