[2019] KEHC 7327 (KLR)
The court held that following the Supreme Court's decision in Francis Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, and the court must exercise discretion in sentencing. Considering the Petitioner's demonstrated reformation, serious health conditions, positive probation and...
Source-derived case information.
- Citation
- [2019] KEHC 7327 (KLR)
- Parties
- Applicant: G O; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 59 of 2016
- Procedural Posture
- Constitutional Petition / Resentencing After Supreme Court Decision on Mandatory Death Sentence
- Outcome
- Petition for resentencing allowed; original death sentence set aside; substituted with fifteen years imprisonment, three years suspended on probation, and Petitioner released unless otherwise lawfully held.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Mitigating Circumstances, Probation, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
G O
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Supreme Court Decision on Mandatory Death Sentence
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Francis Muruatetu.
- 2 What is the appropriate sentence for the Petitioner considering his reformation, health status, and time already served.
Ratio Decidendi
The court held that following the Supreme Court's decision in Francis Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, and the court must exercise discretion in sentencing. Considering the Petitioner's demonstrated reformation, serious health conditions, positive probation and progress reports, and the twelve years already served, the court found that a sentence of fifteen years was adequate. Of these, three years were suspended to be served under probation, with strict conditions. The court balanced the need for deterrence with the Petitioner's personal circumstances, ultimately ordering his immediate release from prison unless otherwise lawfully held.
Court Disposition
Petition for resentencing allowed; original death sentence set aside; substituted with fifteen years imprisonment, three years suspended on probation, and Petitioner released unless otherwise lawfully held.
Orders
- The Petitioner is sentenced to fifteen (15) years in prison.
- Of the above fifteen (15) years, three (3) years are suspended to be served under probation.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION
CONSTITUTIONAL PETITION NO. 59 OF 2016
G O............................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS.....RESPONDENT
JUDGMENT
1. The Petitioner herein 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 against conviction and sentence was dismissed by the Court of Appeal on 15th March, 2012.
2. The current petition is for resentencing after the Supreme Court outlawed the mandatory death sentence in the now famous Francis Muruatetu case.
3. The Petitioner submitted that he has stayed in jail for twelve (12) years since 11th July, 2007 when he was arrested. Further, the Petitioner states that he has since reformed and is a law abiding person. The Progress Report from the prison speaks well of the Petitioner, that he has reformed and is able to engage in petty trade.
4. The Petitioner also suffers from HIV, hypertension and had an operation for hernia. He is constantly on medication.
Probation Report
5. A report was prepared on the Petitioner. The report is dated 27th May, 2019. The Petitioner’s parents died while he was in jail. The Petitioner has a wife who is engaged in fish hawking in Kisauni in Mombasa County. He has three children aged between 14 and 19 years. The eldest child is mentally challenged and requires close supervision. The Probation Report recommends that the Petitioner will be well received both in his family and in the community. The victims of his offence no longer live where the offence took place and the Petitioner’s family also moved away. Mr. Isaboke for the DPP submitted that the Petitioner was a member of a gang of robbers and that the punishment should seek to deter the offence. Mr. Isaboke, however, agreed that due to his reformation and sickness the Petitioner should be sentenced to seventeen (17) years in total, five (5) of which should be suspended and on probation.
Sentence
6. I have carefully considered the Petitioner’s sentence. I have also considered submissions of Petitioner, the Probation Report and the Progress Report. The Petitioner appears remorseful, and also appears to have reformed in prison. The Petitioner is also sickly and would benefit from an early release. However, although there were no fatalities during the crime, the offence is a grave one and shall be punished with an aim to deter the same. Accordingly, I accept the submissions of the prosecution that seventeen (17) years is adequate punishment. However, considering the health status of the Petitioner, this Court orders that the Petitioner be and is hereby sentenced to fifteen (15) years in prison. The Petitioner has served twelve (12) years already. The remaining three (3) years shall be suspended during which time the Petitioner shall be under probation. Accordingly, Judgment is made as under:
i. The Petitioner is sentenced to fifteen (15) years in prison.
ii. Of the above fifteen (15) years three (3) years are suspended to be served under probation.
iii. The Kisauni District Probation Officer shall supervise this order on probation.
iv. During the probation period the Petitioner shall not be engaged in any offence, and if he does, the suspended sentence herein will automatically lapse, and the Petitioner shall be taken to Shimo La Tewa Prison to serve the balance of the sentence, and any other lawful sentence.
v. The Petitioner is herewith forthwith released from prison unless lawfully held.
That is the Judgment of the Court.
Dated, Signed and Delivered in Mombasa this 28th day of May, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda court Assistant