[2020] KEHC 5220 (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 appellant's mitigation, including that he was a first offender, not armed during the offence, and had shown remorse. The court determined...
Source-derived case information.
- Citation
- [2020] KEHC 5220 (KLR)
- Parties
- Appellant: Elias Murimi Musa alias Kananda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 3 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Supreme Court Decision
- Outcome
- Death sentence set aside; appellant resentenced to 14 years' imprisonment from date of arrest.
- Judges
- LW Gitari
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing Guidelines, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elias Murimi Musa alias Kananda
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the petitioner after considering mitigation and the applicable guidelines.
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 appellant's mitigation, including that he was a first offender, not armed during the offence, and had shown remorse. The court determined that a sentence of 14 years' imprisonment, to be computed from the date of arrest, was appropriate and sufficient in the circumstances, setting aside the previous death penalty.
Court Disposition
Death sentence set aside; appellant resentenced to 14 years' imprisonment from date of arrest.
Orders
- The death penalty imposed on the petitioner is reviewed and set aside.
- The petitioner is sentenced to imprisonment for 14 years to be computed from the date of arrest.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
HIGH COURT CR. PETITION 3 OF 2019
ELIAS MURIMI MUSA alias KANANDA .......................... APPELLANT
V E R S U S
REPUBLIC .......................................................................... RESPONDENT
RULING
1. The Petitioner was charged with Robbery with violence Contrary to Section 296(2) of Penal Code before Principal Magistrate’s Court at Kerugoya. He was convicted and sentenced to death. He appealed to the High Court Embu in Criminal Case No. 198/2008 but was not successful.
2. He has filed a petition before this court guided by the Supreme Court decision in Francis Karioko Muruatetu and Others –v- Republic Petition 15 & 16 of 2015 which held that the mandatory death sentence is unconstitutional. It also gave guidelines with regard to mitigating factors that are applicable in a re-hearing sentence for conviction of a murder charge. These are:-
a) Age of the offender.
b) Being a 1st offender
c) Whether offender pleaded guilty.
d) Character and record of the offender.
e) Commission of an offence in reference to gender based violence.
f) Remorsefulness of the offender.
3. The appellant has filed mitigation stating that the death sentence was commuted to life imprisonment. He pleads for leniency. That he pleads not guilty but now confesses that he committed the offence. He has been separated from his family for many years and prays for forgiveness. He further pleads that he has reformed and he was a first offender. He prays that he be set at liberty.
4. The State did not oppose the re-sentencing but urged the court to consider a sentence of 15 years.
5. I have considered the mitigation. I note that the accused was a 1st offender at the time he committed the offence. The accused was not armed. I also note the mitigation. I find that a sentence of 14 years would be sufficient I therefore order as follows:-
a) The death penalty imposed on the petitioner is reviewed and set aside.
b) The Petitioner is sentenced to imprisonment for 14 years which will be computed from the date he was arrested.
Dated at Kerugoya this 26th day of May 2020.
L. W. GITARI
JUDGE