[2019] KEHC 7760 (KLR)
The court held that, following the Supreme Court's decision in Francis Karioko Muratetu & Another v Republic and the Court of Appeal's decision in William Okungu v Republic, the mandatory death penalty for robbery with violence is unconstitutional. The court now has discretion to impose an appropriate sentence based...
Source-derived case information.
- Citation
- [2019] KEHC 7760 (KLR)
- Parties
- Petitioner: Dominic Nyamache Nyabuti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 53 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing After Conviction and Dismissal of Appeals
- Outcome
- Petition for resentencing allowed. Death sentence set aside. Petitioner resentenced to 15 years imprisonment from 14th October 2010.
- Legal Topics
- Mandatory Sentencing, Death Penalty, Resentencing, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Nyamache Nyabuti
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Conviction and Dismissal of Appeals
Legal Issues
- 1 Whether the mandatory death penalty for robbery with violence under section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Karioko Muratetu & Another v Republic.
- 2 Whether the petitioner is entitled to resentencing following the declaration of unconstitutionality of the mandatory death penalty.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Francis Karioko Muratetu & Another v Republic and the Court of Appeal's decision in William Okungu v Republic, the mandatory death penalty for robbery with violence is unconstitutional. The court now has discretion to impose an appropriate sentence based on the circumstances of the case. Considering the period already served by the petitioner and the facts of the case, the court resentenced the petitioner to 15 years imprisonment from the date of first custody, replacing the previous death sentence.
Court Disposition
Petition for resentencing allowed. Death sentence set aside. Petitioner resentenced to 15 years imprisonment from 14th October 2010.
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to 15 years imprisonment from 14th October 2010.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
CONSTITUTIONAL PETITION NO. 53 OF 2018
BETWEEN
DOMINIC NYAMACHE NYABUTI...............................PETITIONER
VERSUS
REPUBLIC........................................................................RESPONDENT
JUDGMENT
1. The petitioner seeks resentencing. He was convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code and was sentenced to death. His appeal in the High Court, in HCCR No. 209 of 2010 was dismissed and his second appeal to the Court of Appeal Criminal Appeal No 11 of 2013 was also dismissed.
2. The petitioner relies on the Supreme Court decision in Francis Karioko Muratetu & Another vs. Republic SCK Petition No. 15 of 2015 declaring the mandatory death penalty unconstitutional. This Court of Appeal’s decision in William Okungu vs. Republic Criminal Appeal No. 56 of 2013held as follows;
[9] From the foregoing, we hold that the findings and holding of the Supreme Court particularly in paragraph 69 applies mutatis mutandis to Section 296 (2) and 297 (2) of the Penal Code. Thus, the sentence of death under Section 296 (2) and 297 (2) of the Penal Code is a discretionary maximum punishment.
3. I have read the proceedings in the lower court, the circumstances of the case and also noted that the petitioner has been in custody since 14th October 2010, about 8 years. I sentence the petitioner to a period of 15 years from the 14th October 2010.
Dated signed and delivered at Kisii this 28th day of March 2019.
R.E.OUGO
JUDGE
In the presence of;
1st Petitioner Present in person
2nd Petitioner Present in person
3rd Petitioner Present in person
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Rael Court Clerk