[2019] KEHC 12082 (KLR)
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence for robbery with violence is unconstitutional. The court considered the petitioner's mitigation, including his remorse, family situation, and good conduct in prison, but also...
Source-derived case information.
- Citation
- [2019] KEHC 12082 (KLR)
- Parties
- Petitioner: Duncan Mwema; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 51 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Death sentence set aside; petitioner resentenced to 20 years imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Penal Code Section 296 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Mwema
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 Whether the petitioner is entitled to resentencing and, if so, what sentence is appropriate.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence for robbery with violence is unconstitutional. The court considered the petitioner's mitigation, including his remorse, family situation, and good conduct in prison, but also weighed the gravity of the offence, which involved violence and injury to the complainant. The court determined that the appropriate sentence was a term of imprisonment of twenty years from the date of arrest, setting aside the previous death sentence.
Court Disposition
Death sentence set aside; petitioner resentenced to 20 years imprisonment from date of arrest.
Orders
- The death sentence is set aside.
- The petitioner is sentenced to twenty (20) years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
27 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 51 OF 2018
DUNCAN MWEMA............................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS........RESPONDENT
JUDGMENT
1. The Petitioner herein was charged and convicted with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code in Mombasa Chief Magistrate Criminal Case No. 2687 of 2004 and sentenced to death. The Petitioner subsequently lodged two appeals and the appeals were dismissed.
2. Brief facts of the case are that on 31st day of August, 2004 the Petitioner together with others robbed Daniel Muturia of a mobile phone. The Petitioner who was armed with a panga assaulted the complainant by cutting him several times with the panga.
Hearing and Submissions
3. The parties filed their submissions and the Petition came up for hearing on 13th June, 2019.
4. It was the Petitioner’s submissions that he regrets his action and should be jailed for 20 years.
5. The Respondent opposed the Petition, submitting that taking into account the circumstances of the case a deterrent sentence of 20 years including the 15 years served would be sufficient.
The Determination
6. On the issue of sentence, this court relies on the Supreme Court case in Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLR declared where the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code was found to be unconstitutional. To that extent this court can now resentence the Petitioner.
7. The Petitioner committed a serious crime. I have heard his mitigation that he has a young family and that he has been of good character in prison.
8. However, the offence he committed was grave and shall be adequately punished.
9. I set aside the death sentence and in place thereof I impose jail term of twenty (20) years from the date of arrest.
10. Right of Appeal in 14 days.
Dated, Signed and Delivered in Mombasa this 5th day of November, 2019.
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant